Amazon.com Services LLC

373 NLRB No. 92 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. Amazon.com Services LLC and Amazon Labor Union. Case 29–RC–288020 August 29, 2024 ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s Requests for Review of the Regional Direc- tor’s Decision and Certification of Representative1 and Order Denying Employer’s Motions to Reopen the Rec- ord2 are denied as they raise no substantial issues warrant- ing review. In requesting review of the Regional Director’s Deci- sion and Certification of Representative, the Employer contends that the Hearing Officer improperly precluded it from presenting evidence in support of its objections. We have considered the evidence proffered by the Employer, as described in its request for review,3 and have deter- mined that this evidence, even if it had been admitted at the postelection hearing, would not warrant a second 1 To the extent this order does not address certain objections, we agree that they were correctly overruled for the reasons articulated in the Re- gional Director’s decision. 2 In denying review, we have considered the Employer’s proffered evidence and supporting argument as set forth in its requests for review, but have not considered facts and argumentation that the Employer at- tempts to incorporate by reference. See Sec. 102.67(e) of the Board’s Rules and Regulations (“A request for review must be a self-contained document enabling the Board to rule on the basis of its contents without the necessity of recourse to the record.”). With respect to the Employer’s Supplemental Motion to reopen the record, we observe that the Employer attempted to subpoena the relevant documentary film footage at the time of the objections hearing, but was precluded from doing so by the Hearing Officer; accordingly, the Re- gional Director was incorrect in finding that the Employer had failed to demonstrate that this specific evidence was previously unavailable. Nev- ertheless, we find that the Regional Director correctly denied the Supple- mental Motion to reopen the record. The documentary footage as de- scribed in the Employer’s request for review and Supplemental Motion to reopen is largely duplicative of, or otherwise corroborates, testimony and documentary evidence that the Employer either already introduced or sought to introduce at the objections hearing. To the extent the footage contains some nominally new evidence, we find that this evidence would not change the result here, for the reasons noted below. With respect to the Employer’s (first) Motion to reopen the record, we agree with the Regional Director that the Employer could have obtained much of the alleged evidence it seeks to introduce—which consists of allegations made in a legal complaint filed against the Petitioner—at the time of the hearing by questioning witnesses or obtaining the relevant LMRDA forms. To the extent the Employer could not have obtained certain evidence at the time of the hearing, we agree with the Regional election. The exclusion of this evidence accordingly did not constitute prejudicial error. See Sec. 102.67(d)(3). The Employer also has requested review of the Re- gional Director’s decision to affirm some of the Hearing Officer’s credibility findings. The Regional Director ap- propriately evaluated the Employer’s exceptions to the hearing officer’s findings under Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). Nevertheless, we observe that even if the testimony highlighted by the Employer had been credited, that would not change the results, for the reasons discussed in the Hearing Officer’s report and the Regional Director’s decision, as well as the additional rea- sons discussed below with respect to certain objections. To the extent the Employer asserts that the conduct of the Region 29 representatives at the objections hearing warrants review, the relevant inquiry is whether the con- duct of the Region 29 representatives caused prejudicial error with respect to the post-election proceedings. See Sec. 102.67(d)(3).4 We conclude that it did not. Much of the conduct complained of by the Employer—including cross-examining witnesses, voicing objections, and seek- ing to exclude evidence—is explicitly contemplated by Section 11424.4(b) of the NLRB Casehandling Manual (Part Two) Representation Proceedings, which sets forth Director that this evidence would not change the result here. The unver- ified allegations in the complaint, even if accepted as true, do not prove that Cassio Mendoza and Pasquale Cioffi were Petitioner agents during the critical period. Nor has the Employer shown how, if they were proven to be agents, this would result in the sustaining of any objections. Furthermore, and as the Hearing Officer explained in her Report, it is well-established that the failure to file certain legally-required LMRDA forms does not constitute objectionable conduct, even if it deprives em- ployees of relevant information prior to the election. See, e.g., Family Service Agency San Francisco v. NLRB, 163 F.3d 1369, 1383-1384 (D.C. Cir. 1999). As to any evidence that the Petitioner’s messaging on dues may have shifted during the campaign, this would not change the out- come here as we agree with the Regional Director’s finding in the Deci- sion and Certification of Representative that assurances regarding dues that are not conditioned on union support are not objectionable. Finally, and as we discuss in further detail below, the Petitioner’s showing of interest is not litigable and does not constitute grounds for setting aside the election; accordingly, evidence relating to the sufficiency of the Pe- titioner’s showing would not change the result here. 3 The Employer’s request for review occasionally asserts that evi- dence was improperly excluded without providing any explanation or ar- gument as to what the relevant evidence was, why it was relevant, or how it would have supported the Employer’s objections—instead, the Em- ployer only lists the relevant transcript pages. This evidence is accord- ingly not properly before the Board, and we have not considered it. See Sec. 102.67(e) of the Board’s Rules and Regulations (“A request for re- view must be a self-contained document enabling the Board to rule on the basis of its contents without the necessity of recourse to the record.”). 4 Having occurred well after the conclusion of the election, the con- duct of the Regional representatives cannot be grounds for a rerun elec- tion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 the duties of a regional representative.5 We reiterate, of course, that regional representatives should engage in self- restraint when carrying out such functions. See id. Nev- ertheless, we agree with the Regional Director that the conduct of the Region 29 representatives here did not con- stitute prejudicial error, especially given our finding that none of the evidence or testimony proffered in the Em- ployer’s request for review, even if it had been admitted or credited at the hearing, would establish objectionable conduct warranting a second election. For certain objections, the Employer argues that the Re- gional Director erred in applying the standard articulated in Polymers, Inc., 174 NLRB 282, 282–283 (1969), enfd. 414 F.2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970) (Polymers), as opposed to the standard articulated in Athbro Precision Engineering Corp., 166 NLRB 966 (1967) (Athbro). The Athbro standard applies in circum- stances where Board agent or Regional conduct reasona- bly conveys the impression that the Board is biased in fa- vor of (or alternatively, biased against) one of the parties to the election, even if the relevant conduct does not call the results of the election into question.6 See Sonoma Health Care Center, 342 NLRB 933, 933 (2004). The Polymers standard, in contrast, applies when Board agents engage in conduct that does not evince any bias towards or against a particular party, but nevertheless deviates from the Board’s case law and/or procedures in a way that might have affected the results of the election.7 See 174 NLRB at 282–283. The Regional Director correctly dis- tinguished between the Polymers and Athbro standards in his decision, although we will elaborate on the application of these standards with respect to certain of the objections discussed below. With respect to Objection 1, we agree with the Regional Director that the Employer has not met its burden to prove that the Region’s conduct in seeking a 10(j) injunction constitutes objectionable conduct under Athbro. As the 5 “The representative may voice objections; cross-examine, call and question witnesses; and call for and introduce appropriate documents. If the information in the representative’s possession warrants it, he/she should seek to impeach the testimony of witnesses called by others or contradict evidence that has been presented.” In this regard, the function of a regional representative is “to see that the relevant evidence adduced during the region’s administrative review becomes part of the record,” which is not necessarily limited to allegations involving regional mis- conduct. 6 Although, as the Regional Director stated, the conduct in Athbro itself occurred on the day of the election, biased conduct on the part of a Board agent need not necessarily occur on the day of the election in order to be objectionable. 7 The Hearing Officer’s Report erroneously refers to the Polymers standard as applying to party conduct, which is not the case. Instead, and as the Regional Director’s decision reflects, the relevant standard for party conduct is whether the conduct in question has a reasonable Board has explained, Board agents do not impugn their neutrality under Athbro simply because they are exercis- ing their dual responsibilities to conduct elections on be- half of the Board and, simultaneously, to remedy unfair labor practices on behalf of the General Counsel.8 Here, the Region’s actions in pursuing the 10(j) injunction—in- cluding the timing of the suit, the comments made by Re- gional Director Drew-King in connection with that suit, and the Region’s alleged coordination with the Peti- tioner—are consistent with the General Counsel’s usual 10(j) practices and reflect that the Region was merely ful- filling its dual responsibilities under the Act to the best of its abilities. With respect to Objections 3, 4, and 5, we agree with the Regional Director that the Employer’s objections con- stitute a collateral attack on the showing of interest, which, under well-established Board precedent, is not litigable.9 The Employer asserts that it is not contesting the suffi- ciency of the showing of interest, but is instead arguing that the Region’s processing of the showing of interest in- dicated partisan bias under Athbro. We can discern no bias in the Region’s handling of the showing of interest. Further, the evidence that the Employer claims it would have adduced at the objections hearing had it been permit- ted to do so, as well as the evidence it sought to introduce via its first Motion to reopen, is almost exclusively aimed at proving that the Region miscalculated or misrepre- sented the number of employees in the petitioned-for unit in order to approve an insufficient showing of interest. This is, by any definition, a collateral attack on the suffi- ciency of the showing of interest, which is foreclosed by Board law. Accordingly, the Hearing Officer properly ex- cluded the proffered evidence at the objections hearing, and the Regional Director did not err in denying the Em- ployer’s motion to reopen the record with respect to this evidence.10 Finally, the Employer’s collateral attack on the showing of interest is undercut by the fact that it tendency to interfere with employee free choice. See, e.g., Baja’s Place, Inc., 268 NLRB 868, 868 (1984). 8 See S. Lichtenberg & Co., 296 NLRB 1302, 1302 (1989). 9 See, e.g., Lennox Furnace Co., Inc., 86 NLRB 698, 698 (1949) (“We have frequently pointed out that showing of interest is an administrative matter not subject to collateral attack. Once the Board has determined for itself that a petitioner has made a prima facie showing of interest, it will proceed to determine the question concerning representation.”). 10 In addition, the Employer has not identified any provisions of the Board’s Rules and Regulations or the Casehandling Manual from which the Region departed in evaluating the Petitioner’s showing of interest. Further, the fact that the Petitioner may have publicly called for flexibil- ity with respect to the showing of interest requirement does not demon- strate that the Region acceded to this request and is, once again, premised on the sufficiency of the showing of interest. Finally, in denying review of the Employer’s Request for Review of the Regional Director’s Order Denying its Motions to Reopen, we do not rely on the Regional Direc- tor’s implication that the Regional Director for Region 29 relaxed the 30 AMAZON.COM SERVICES LLC 3 entered into a Stipulated Election Agreement to proceed to an election. With respect to Objections 6, 7, and 8, we agree with the Regional Director’s application of the Polymers stand- ard. The Board agent conduct alleged in these objec- tions—including failing to adequately staff the election, splitting the voting lines in alphabetical order, and failing to police media presence—is not conduct that conveys partisan bias towards or against any party. Accordingly, the Polymers standard applies. For Objections 6 and 7, specifically, we agree with the Regional Director that the evidence as described in the Hearing Officer’s report and the Employer’s request for review, including (but not limited to) long lines at certain polling sessions and allegedly inadequate voting proce- dures, especially during the initial polling sessions, does not call the fairness and validity of the election into ques- tion under Polymers or constitute the effective disenfran- chisement of voters,11 especially as there is no evidence that voters were turned away from the polls.12 Further, the Board “avoid[s] unrealistic standards which insist on im- probable purity of word and deed on the part of the parties or Board agents.”13 Given the size, scope, and complexity of this election, it is unrealistic to expect it to have been free of any complications; those that did occur may have been inconvenient, but the Employer has not established that they raise a reasonable doubt as to the fairness and validity of the election, particularly in the absence of any actual disenfranchisement. For Objection 8, we observe that the Board agents agreed to police the no-electioneering zone in accordance with their responsibility to do so,14 and reasonably in- formed the Employer that they would not be able to police media presence outside of that zone. Neither the NLRB Casehandling Manual nor Board precedent obligated the Board agents to police the area outside of the no-election- eering zone, and we agree with the Regional Director that percent showing of interest requirement. The Regional Director for Re- gion 29 did not purport to do so. 11 The Employer asserts that the Hearing Officer erred in excluding evidence that the polls opened 5–12 minutes late for the first polling ses- sion. But as the Regional Director explicitly found, the Employer’s prof- fered evidence, if credited, would not warrant a rerun election. When a party alleges that the polls opened late or closed early, the relevant in- quiry is whether a determinative number of voters could have possibly voted during the time when the polls were supposed to be open. See, e.g., Wolverine Dispatch, Inc., 321 NLRB 796, 796–797 (1996). We fully agree with the Regional Director that a 5–12 minute delay at the beginning of the first polling session could not have possibly disenfran- chised a determinative number of voters, because the Petitioner prevailed in the election by 523 votes. 12 To the extent employees might have chosen to leave the voting lines for their own subjective reasons, this is not relevant evidence of disen- franchisement. See Versail Mfg., Inc., 212 NLRB 592, 593 (1974). it would be unrealistic to expect the Board agents to have done so under the circumstances.15 Although the Board agents were unable to keep the no-electioneering zone en- tirely free from media presence, we agree with the Re- gional Director that the Employer did not establish that the media’s conduct (both inside and outside of the no-elec- tioneering zone) was itself objectionable, especially as there is no indication that any members of the media en- gaged in electioneering or otherwise attempted to influ- ence employees’ votes. The film footage described in the Employer’s Supplemental Motion to reopen the record does not establish otherwise; nor does it establish that the documentary film crew was an agent of the Petitioner for purposes of Board law. Accordingly, the fact that the Board agents did not keep the no-electioneering zone free from media presence does not raise a reasonable doubt as to the fairness and validity of the election under Polymers. With respect to Objections 9, 23, 24, and 25, we agree with the Regional Director that, even if the Hearing Of- ficer had credited testimony that the Petitioner’s repre- sentatives (including Petitioner President Smalls) were oc- casionally present in the no-electioneering zone, this would not establish objectionable conduct.16 First, with respect to objectionable electioneering, it is well-estab- lished that the “[p]resence [of a union representative in the vicinity of the polls] alone, in the absence of evidence of coercion or other objectionable conduct, is insufficient to warrant setting aside an election.”17 Here, the Employer has identified no evidence indicating that the Petitioner’s representatives were engaging in any electioneering in the designated no-electioneering zone, either in its requests for review or in its motions to reopen the record; accord- ingly, the Employer has not met its burden to establish ob- jectionable electioneering. Second, we find that the Employer has not met its bur- den to prove that the Petitioner engaged in, or created the impression of, objectionable surveillance. In this regard, 13 Newport News Shipbuilding & Dry Dock Co., 239 NLRB 82, 91 (1978). 14 See NLRB Casehandling Manual (Part Two) Representation Pro- ceedings Sec. 11326.4. 15 See Newport News Shipbuilding & Dry Dock Co., supra at 90. 16 The Regional Director’s decision and Hearing Officer’s report ad- dress other incidents of alleged misconduct under the purview of Objec- tions 9, 23, 24, and 25, that we do not address in this order. We agree that this conduct was not objectionable for the reasons stated in the report and the decision. Because we find that the Petitioner did not engage in objectionable conduct, the Board agents did not engage in misconduct under Polymers by allowing it to occur. We further find that the Board agents’ conduct did not violate Athbro because Objections 9, 23, 24, and 25 do not speak to any conduct that would indicate partisan favoritism. 17 Harlan #4 Coal Co. v. NLRB, 490 F.2d 117, 121 (6th Cir. 1974), cert. denied 416 U.S. 986 (1974). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 we agree with the Regional Director’s finding that the Pe- titioner’s representatives did not maintain a “ubiquitous presence” in or around the polling place; to the contrary, the Hearing Officer’s report (as well as the Employer’s re- quest for review) summarizes evidence indicating that the Petitioner’s representatives were seen in various locations in and around the polling place at different times through- out the election, and that the Petitioner’s representatives were usually stationed in these locations for only a brief period of time. Under such circumstances, voters could not reasonably believe that the Petitioner’s representatives were capable of effectively monitoring or surveilling who was and was not voting,18 especially given that the elec- tion took place over many hours, multiple polling ses- sions, and several days.19 Finally, the Employer’s request for review also argues that the discredited testimony of employee Villalongo es- tablishes objectionable conduct under the rule articulated in Milchem, Inc., 170 NLRB 362 (1968). Like the Re- gional Director, we see no basis for reversing the Hearing Officer’s credibility finding with respect to Villalongo.20 18 See J.P. Mascaro & Sons, 345 NLRB 637, 639–640 (2005). 19 With respect to Objection 23, we do not rely on any subjective evi- dence with respect to how voters personally perceived a video posted by Petitioner President Smalls, which depicted him in the no-electioneering zone prior to the opening of the polls. Rather, we find that the video would not, under an objective standard, reasonably cause voters to be- lieve they were being surveilled. 20 In this regard, we observe that the Hearing Officer did not discredit Villalongo simply because her testimony lacked detail. Rather, the Hear- ing Officer discredited Villalongo “based on her overall demeanor, as well as the inherent improbability and lack of detail and corroboration” with respect to her testimony. Further, we agree with the Regional Director that, even had Vil- lalongo’s testimony been credited, it is inadequate to establish objection- able conduct under Milchem. Villalongo testified that, for the duration of her 5–6 minute break, she saw the Petitioner’s representatives (includ- ing Petitioner President Smalls) “talking” to and “recording” employees “in the line” to vote, roughly halfway between the entrance to the voting tent and the entrance to the Employer’s facility. This testimony, how- ever, was imprecise and vague: Villalongo could not hear the substance of the conversations, nor did she testify that any single conversation spanned the duration of her break. Accordingly, the Employer has not met its burden to establish that the Petitioner’s representatives were en- gaged in “prolonged” conversations for purposes of Milchem, because Villalongo’s testimony does not establish that the relevant conversations were more than brief and innocuous. See Sir Francis Drake Hotel, 330 NLRB 638, 638 (2000) (no violation of Milchem where the petitioner’s observer spoke to a total of 5–6 voters over the course of the election, and where the conversations lasted only for a few seconds to a minute); NLRB v. Vista Hill Foundation, 639 F.2d 479, 484 (9th Cir. 1980), enfg. 239 NLRB 667 (1978) (no violation of Milchem where none of the six conversations with voters lasted more than 1 or 2 minutes, and where the conversations consisted mostly of greetings and comments on the weather). Moreover, the conversations did not occur within the no-electioneer- ing zone or contrary to the instructions of a Board agent, cf. Bio-Medical Applications of Puerto Rico, Inc., 269 NLRB 827, 830 (1984) (conver- sations “prolonged” for purposes of Milchem where the representative’s With respect to Objection 13, we agree with the Re- gional Director that the Petitioner’s conduct was not ob- jectionable. This objection primarily concerned a con- frontation between employee Monarrez, who opposed the Petitioner, and Petitioner agents in a break room. Monarrez had an openly antagonistic and provocative re- lationship with the Petitioner’s agents and supporters due to her initial vocal support for, and subsequent vigorous opposition to, the Petitioner. However, with respect to this confrontation between employee Monarrez and the Petitioner’s agents, which oc- curred on the first day of voting, we do not pass on the Regional Director’s conclusion that the threats made by the Petitioner’s agents—including threatening to “kick [Monarrez’s] ass,” “take [her] outside,” and “beat [her] up”—would reasonably be construed as hyperbole and bombast as opposed to a threat of serious physical harm,21 and that such threats are distinguishable from the threats made in the cases relied upon by the Employer.22 Nor do we pass on his conclusion that the confrontation would have been perceived as an outgrowth of personal presence in the no-electioneering zone was sustained throughout the election and where the representative was informed that his conduct vi- olated the Board’s election rules), and, given the Petitioner’s large mar- gin of victory (523 votes), the conduct testified to by Villalongo would not have affected the results of the election. See Sir Francis Drake Hotel, supra at 638 (“[I]n light of the Petitioners’ large margin of victory, we agree with the hearing officer that Lee’s brief remarks to five or six vot- ers could not have affected the results of the election and are not suffi- cient grounds for setting it aside.”); Mead Corp., 189 NLRB 190, 190 (1971) (“In view of the fact that Walker’s vote is not, in any event, dis- positive of the election results, we agree with the Acting Regional Direc- tor that this single incident is not sufficient to warrant setting aside the election.”). Finally, to the extent that Villalongo testified that the Petitioner’s agents were filming employees in line to vote, even if her testimony were credited it would not be sufficient to establish that the Petitioner was “making a permanent visual record of employees’ Section 7 activity without a legitimate justification,” because Villalongo could not hear what the Petitioner’s representatives were saying to the voters in line. See Randell Warehouse of Arizona, Inc., 347 NLRB 591, 596 (2006). In this regard, we reiterate that the burden is on the Employer to introduce evidence that warrants setting the election aside. 21 See Mastec North America, Inc., 356 NLRB 809, 812–813 (2011) (acknowledging the Board’s general recognition that a threat to “‘kick [someone’s] ass’ . . . standing alone does not convey a threat of actual physical harm”) (quoting Leasco, Inc., 289 NLRB 549, 549 fn. 1 (1988)) (alteration and omission in original). 22 See, e.g., Robert Orr-Sysco Food Services, LLC, 338 NLRB 614, 615–616 (2002) (voters were threatened with deportation, “crack[ed] heads,” and other reprisal for crossing the picket line); Buedel Food Products Co., 300 NLRB 638, 638 (1990) (threat to burn a car); Steak House Meat Co., 206 NLRB 28, 28–29 (1973) (union supporter bran- dished a knife at another employee and told him he would kill him if he did not vote for the union); Smithers Tire, 308 NLRB 72, 72–73 (1992) (union agent pointed to black eye and said “this is what happens when you cross us”); Cedars-Sinai Medical Center, 342 NLRB 596, 596-598 (2004) (two employees received anonymous phone calls that implicitly threatened their children and pets with violence). AMAZON.COM SERVICES LLC 5 antagonism between Monarrez and the Petitioner’s agents, rather than as a threat against opponents of the union. We ultimately agree with the Regional Director that, regardless of the nature of comments by the Petitioner’s agents and how the incident may have been perceived by the limited number of employees who witnessed it, the Employer’s evidence (including the film footage de- scribed in the Employer’s Supplemental Motion to reopen the record)23 does not establish widespread dissemination or indicate that the incident had a considerable or long- lasting impact on voters.24 The Employer argues that— despite the limited number of eyewitnesses—the incident was heavily disseminated because Monarrez posted about it on the Employer’s Voice of the Associate (VoA) online message board, but the Employer does not point to any evidence demonstrating how many employees viewed or otherwise interacted with the relevant posts. Further, Monarrez’s posts on the VoA board do not indicate that the Petitioner’s agents threatened her with serious physi- cal harm—rather, they state that the Petitioner’s agents “screamed at” her, and generally imply that other Peti- tioner supporters or members (without specificity as to whether they were agents) may have “insulted,” “bullied,” or “defamed” her.25 Finally, we observe, as did the Regional Director, that the Petitioner prevailed in the election by a large margin.26 Accordingly, given the totality of the circumstances, we 23 In fact, the footage described by the Employer does not depict the confrontation between Monarrez and the Petitioner’s agents (or its after- math) at all. 24 Cf. Cedars-Sinai Medical Center, supra at 598 (threatened em- ployee told 20-30 other employees about what had happened, and there was evidence that the threats were continuously discussed among em- ployees up and until the election). 25 Insofar as Monarrez’s posts referred specifically to Jason Anthony, we observe that Anthony was not an agent of the Petitioner, and we agree with the Hearing Officer’s analysis concluding that, in context, An- thony’s actions did not meet the standard for objectionable nonparty con- duct. 26 Cf. Cedars-Sinai Medical Center, supra at 598 (finding that threats warranted a new election, in part, because the threats were likely dissem- inated to a determinative number of voters). 27 Dissemination and impact (along with the closeness of the vote) are well-established factors that the Board considers when determining whether threatening conduct warrants setting aside an election; the in- quiry does not simply begin and end with whether threats occurred. Compare Werthan Packaging, Inc., 345 NLRB 343, 345 (2005) (where threat and interrogations were directed at five employees, in unit of 200; where there was no dissemination; and where union lost by 21 votes, “record does not establish that the [e]mployer’s conduct affected a deter- minative number of employees, or that it was otherwise so pervasive as to warrant a new election”), with Baja’s Place, 268 NLRB at 868-869 (observing that the union agent’s threats were not “idle threats made in a vacuum, but were threats made by a union official who wielded substan- tial influence in the local industry,” and that they were “disseminated among the employee work force”); Robert Orr-Sysco Food Services, LLC, supra at 615 (“Given the vote spread, a one-vote swing away from find that the Employer has not established that confronta- tion between Monarrez and the Petitioner’s agents had a reasonable tendency to interfere with employees’ free and uncoerced choice in the election.27 With respect to Objection 15, we find that the Peti- tioner’s conduct—including disrupting as many as three small group meetings28 on February 7 and tearing down six of the Employer’s posters on February 19—when viewed objectively did not have a reasonable tendency to interfere with employee free choice in the election under the factors set forth in Avis Rent-A-Car System, Inc., 280 NLRB 580, 581 (1986).29 In this regard, the Petitioner’s agents did not make any threats or coerce employees dur- ing the course of this conduct, the disruptions and tearing down of posters occurred 6 weeks before the election, and the vote was not close. Furthermore, the Petitioner’s con- duct was unlikely to have a lasting impression on voters, especially given that the Employer put the six posters back up immediately, alongside scores of additional untouched posters and other campaign paraphernalia. For example, the Employer placed 50-100 posters total at the facility, displayed banners up to 10 feet long, and placed 300–400 “table toppers” on a majority of breakroom tables. The Employer also had numerous additional small group meet- ings, roughly every day for the 6 weeks leading up to the election, with employees mandated to attend two to six such meetings.30 the [p]etitioner would have brought the [p]etitioner’s three challenges into play, potentially changing the outcome of the election—and threats were made to at least five employees and disseminated to at least four more employees.”). In this regard, we do not condone the behavior of the Petitioner’s agents in the present dispute; rather, we find that the Em- ployer has not met its burden to prove that this single incident had a suf- ficiently significant or widespread impact on the voting unit to warrant a new election, or that this incident—given the nature of Monarrez’s de- scription and the lack of evidence of number of VoA viewers—was dis- seminated among the voting unit to the point where voters would, as our dissenting colleague contends, view it as part and parcel of a broader pattern of behavior by the Petitioner. 28 Meetings were typically attended by 20 to 30 employees. 29 We do not, however, rely on the Board’s decision in Station Oper- ators, Inc., 307 NLRB 263, 263 (1992), which focused on whether the petitioning union’s representatives engaged in objectionable trespass when they interrupted an employee meeting. 30 Our dissenting colleague does not assert that the conduct alleged in the Employer’s Objection 15 was objectionable in and of itself (or cite any Board precedent that would support such an assertion), but rather discusses it as an example of the Petitioner’s “repeated violations of the Employer’s property rights and destruction of its property” and asserts that the Petitioner’s actions “demonstrated to the unit employees that it was ‘powerless’ to protect its property rights.” However, contrary to the dissent’s implications, this conduct occurred on only a few isolated oc- casions and did not constitute a regular component of the Petitioner’s organizing campaign. Indeed, as indicated above and as described in the Hearing Officer’s report, the Employer quickly disciplined the Peti- tioner’s agents for removing its campaign materials; the Petitioner’s agents immediately ceased this activity and its disruptions of the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 With respect to Objection 16, we do not rely on the Hearing Officer’s and Regional Director’s findings that Petitioner agents Smalls and Bryson were “employees” within the meaning of the Act, and that they did not en- gage in legal trespass or violate the Employer’s no-solici- tation policies. The relevant inquiry for purposes of an objections analysis is not whether Smalls’ actions were lawful, whether they were, in our dissenting colleague’s words, “militant” and “aggressive,” or whether the Em- ployer was within its rights to remove or otherwise pro- hibit his conduct; rather, the legal question before us is whether Smalls’ “conduct ‘reasonably tend[ed] to inter- fere with the employees’ free and uncoerced choice in the election.’”31 We find that it did not, based on the follow- ing considerations: Smalls’ actions while on the Em- ployer’s property were not violent or destructive;32 his vis- its occurred in areas that were normally open to visitors; the Employer did not ask Smalls to leave the property dur- ing most of his visits; Smalls and Bryson were in the pro- cess of leaving the Employer’s property when they were arrested; the arrest occurred well before the election; there is little indication that eligible voters were aware that Smalls did not comply with the Employer’s written de- mands33; there were only two occasions (on February 9 and 23) where the Employer’s managers verbally asked Smalls to leave the property; and the election was not close.34 This case is therefore readily distinguishable from Phil- lips Chrysler Plymouth, Inc., 304 NLRB 16, 16 (1991), upon which the dissent relies. In Phillips, two union agents had a loud, hostile exchange with the employer’s representatives on the day of the election, in which the un- ion agents “repeatedly and belligerently” refused to leave Employer’s small group meetings; and the Employer was able to conduct its extensive anti-organizing campaign largely without interruption. Un- der such circumstances, voters would not reasonably conclude that the Employer was “powerless” to protect its property rights. We reiterate, furthermore, that there is no evidence that the Petitioner threatened or harassed any employees when it “disrupted” the Employer’s small group meetings, or that, aside from the six posters removed by the Petitioner’s agents on February 19, any of the Employer’s other campaign materials were removed, damaged, or destroyed by the Petitioner or its supporters. Finally, we observe that the film footage described in the Employer’s Supplemental Motion to reopen the record would not change the result here, because the Petitioner’s conduct at the Employer’s small-group meetings—whether “planned” or not—was not objectionable, for the reasons discussed above. 31 See Edward J. DeBartolo Corp., 313 NLRB 382, 382–383 (1993) (quoting Baja’s Place, Inc., supra at 868) (alteration in original). 32 The dissent contends that, during the February 23 incident, “two other Petitioner agents (Daniels and Anthony) physically and verbally accosted NYPD officers as the officers were attempting to enforce the Employer’s property rights.” However, in recounting the relevant facts, the dissent—consistent with the Hearing Officer’s report—describes the confrontation as follows: “Anthony positioned himself between Smalls and the officers, making physical contact with one or two of the officers, the employees’ work area. Id. This confrontation oc- curred “in front of the employees” and “continued for some time;” and then, even after the police were sum- moned, “the organizers failed to stop their unwarranted trespass.” Id. In finding that the union agents’ conduct warranted setting aside the election, the Board concluded that the union agents’ conduct conveyed the message “that the [e]mployer was powerless to protect its own legal rights in a confrontation with the [u]nion,” and that “[t]he impact of this incident [was] especially significant in this election, in which a shift of one vote could have changed the outcome.” Id. Here, in contrast, the encounter between the Petitioner’s agents and the police occurred outside of the Employer’s facility and lasted approximately 6 minutes. After calmly speaking to the police for about 3 minutes, Smalls and his companions agreed to leave the Employer’s property and then began walking towards the car. The police arrested Smalls less than 3 minutes later, when Smalls was stand- ing next to the car at the very edge of the Employer’s prop- erty and preparing to exit the premises. In this regard, the February 23 confrontation would not reasonably convey to employees that the Employer was “powerless” to en- force its property rights—Smalls and his companions quickly submitted to their arrest35 within 6 to 7 minutes of the police arriving and were in the process of leaving the Employer’s premises at the time they were arrested. Moreover, on the only other occasion the Employer asked Smalls to leave its premises (February 9), Smalls left “a few minutes after” he was asked to do so, per the Hearing Officer’s Report. Thus, to the extent Smalls was arguably “flouting” the Employer’s directives by returning to its property after the arrest, as our dissenting colleague and Daniels gestured his hands in an officer’s face.” Although this was undeniably a heated exchange, neither Daniels nor Anthony engaged in the type of violent and/or threatening conduct that would reasonably tend to affect employee free choice, even if Anthony was acting as an agent of the Petitioner at the time. 33 Although the dissent observes that the Employer made repeated written demands that Smalls refrain from entering the Employer’s prop- erty, it is not clear that voters were aware of the extent of these written demands or of the Employer’s other efforts to prohibit Smalls from en- tering its property. Smalls did post a screenshot of one “cease and desist” letter to his Twitter account, but this occurred prior to the critical period; and then, during the critical period, Smalls frequently visited the Em- ployer’s property without any pushback from the Employer that has been shown to have been disseminated to the unit, at least not until Smalls’ arrest on February 23. 34 The Board has relied on similar considerations in declining to find objectionable trespass in other cases. See NLRB v. Earle Industries, Inc., 999 F.2d 1268, 1273 (8th Cir. 1993); Edward J. DeBartolo Corp., supra at 282-283; Station Operators, 307 NLRB at 263; Champaign Residen- tial Services, Inc., 325 NLRB 687, 688 (1998). 35 Although Smalls was initially charged with “resisting arrest,” the state did not pursue or prove these charges, and neither Anthony nor Dan- iels were charged with any unlawful activity at all. AMAZON.COM SERVICES LLC 7 asserts, the Employer had clearly demonstrated to employ- ees that it was capable of removing Smalls from its prop- erty whenever it chose to do so and thereby enforcing its property rights. Finally, unlike in Phillips, the February 23 confrontation occurred well before the election, and the Petitioner won by much more than a single vote. The dissent further relies on—and the Employer con- tends that it was improperly precluded from introducing or elaborating on—evidence relating to the “impact” of Smalls’ arrest on the election, such as testimony from Pe- titioner supporter Pat Cioffi that the arrest “flipped” 400– 500 votes, and Smalls’ statement (made on a podcast after the election) that his arrest was the “turning point” of the election. Such evidence would not change the outcome here. The fact that someone, Petitioner agent or otherwise, was of the opinion that the arrest was a watershed moment during the campaign does not show that it interfered with employees’ free choice; it shows only that it was perceived as an influential moment during the campaign. The Em- ployer is generally correct that the “impact” of conduct on voters is a factor under the Board’s test for objectionable party conduct, but conduct is not objectionable merely be- cause it influences or affects how employees choose to vote. Rather, party conduct is objectionable when it pre- vents employees from making a “free and uncoerced” choice.36 Here, although Smalls’ alleged trespass and arrest may have prompted employees to feel sympathetic towards the Petitioner, and although the Petitioner heavily dissemi- nated information about the arrest in the hopes of garner- ing support for its campaign,37 nothing in the conduct pre- cipitating the arrest can reasonably be construed as coer- cive towards voters or otherwise tending to interfere with 36 See Baja’s Place, supra at 868 (emphasis added). 37 In this regard, we observe that both the Petitioner and the Employer attempted to capitalize on Smalls’ arrest by “spinning” it in favor of their respective positions. 38 In this regard, we emphasize, as did the Regional Director, that em- ployees had the choice to read or ignore the Petitioner’s projections at their own discretion. See Virginia Concrete Corp., 338 NLRB 1182, 1187 (2003) (message transmitted to drivers’ screens did not violate Peerless Plywood because “[a]lthough it was uninvited, the drivers could delete or scroll past it if they chose; they did not have to leave it on the screen indefinitely”). 39 We further find that, even if the Hearing Officer and Regional Di- rector had credited evidence that the Petitioner distributed marijuana dur- ing the critical period, the Employer failed to establish that this conduct constituted objectionable conduct under the factors set forth in B&D Plastics, Inc., 302 NLRB 245, 245 (1991). In this regard, we agree with the Hearing Officer that the Employer failed to establish that the mariju- ana constituted a significant or sizable benefit. Even though marijuana is an illegal substance for federal purposes, it was legalized in New York at the time of the election, and the marijuana was of limited monetary value. Similarly, the other B&D Plastics factors weigh against a finding that the Petitioner’s distribution of marijuana was objectionable, as there their free choice. The evidence the Employer sought to adduce would, at most, reflect that voters took Smalls’ ar- rest for trespass into account when exercising their free choice. For similar reasons, we find that the film footage described in the Employer’s Supplemental Motion to reo- pen the record would not change the result here: regardless of whether the Petitioner orchestrated Smalls’ arrest as part of its campaign strategy, or whether Smalls was giv- ing an interview on the Employer’s property that day in- stead of handing out food to workers, the arrest (and the circumstances surrounding it) did not preclude voters from making a free and uncoerced choice in the election. We therefore agree with the Regional Director’s decision to overrule Objection 16. With respect to Objection 21, we agree with the Re- gional Director’s conclusion that the Petitioner’s light pro- jections did not violate the Board’s rule under Peerless Plywood Co., 107 NLRB 427, 429 (1953).38 Although such light projections are not explicitly addressed in past cases arising under the Peerless Plywood standard, the Board’s existing precedent presents analogous circum- stances, and we find the principles set forth therein are ad- equate to assess this type of conduct. With respect to Objection 22, we emphasize that the Hearing Officer and the Regional Director determined that marijuana was not distributed during the critical period.39 To conclude, we find that the Employer’s request for review has failed to establish objectionable conduct, both with respect to each individual objection and cumula- tively. Accordingly, we deny review. Dated, Washington, D.C. August 29, 2024 is no testimony clearly establishing that the marijuana was distributed in the days immediately preceding the election; it is unclear how many em- ployees actually received the marijuana; and there is no testimony sug- gesting that the Petitioner conditioned its distribution of the marijuana on employee support in the election. Compare Jacqueline Cochran, Inc., 177 NLRB 837, 839 (1969) (finding turkey give-away unobjectionable because “[w]hen the turkeys were distributed there was no imminent or prospective election” for another 25 days, and because there was “no ev- idence that the Union conditioned the free turkeys upon the outcome of the election or how eligibles intended to vote”), with General Cable Corp., 170 NLRB 1682, 1682–1683 (1968) (sustaining objection where the union distributed $5 gift cards—worth around $40 today—to every employee the week before the election). Even assuming, arguendo, that the film footage described in the Employer’s Supplemental Motion to reopen the record would establish that the Petitioner distributed mariju- ana during the critical period, it would not alter the foregoing analysis. At most, it would show that marijuana was offered to some employees early in the critical period. To the extent Petitioner President Smalls stated or otherwise implied that the marijuana was expensive when speaking with employees, we do not consider this probative evidence of its actual economic value, which was not otherwise established. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. This is a case in which the Petitioner, Amazon Labor Union, deliberately set about to build a successful organ- izing campaign by “showing the workers that we have col- lective power.” While such a strategy is certainly not ob- jectionable in itself, the Petitioner’s “militant” and “ag- gressive” tactics in furtherance of that strategy were. The Petitioner repeatedly and knowingly trespassed on the Employer’s private property by consistently ignoring the Employer’s written demands not to enter its property and refusing to comply with the Employer’s oral directives to leave, expressly taunted the Employer to involve the po- lice, aggressively challenged the police’s authority when the Employer finally sought their protection, foreseeably caused the arrest of multiple Petitioner agents and multiple unit employees, disrupted the Employer’s meetings with employees, and tore down the Employer’s campaign fly- ers. And as if that were not enough, the Petitioner threat- ened violence against a unit employee in front of other em- ployees for exercising her statutorily protected right to op- pose the Petitioner. To me, it is abundantly clear that the Petitioner’s “aggressive” conduct in this case crossed the line and “reasonably tend[ed] to interfere with the employ- ees’ free and uncoerced choice in the election.” Baja’s Place, 268 NLRB 868 (1984). Accordingly, contrary to my colleagues, I would order a new election.1 1 My colleagues also deny the Employer’s supplemental request for review of the denial of its two motions to reopen of the record. Because I believe the current record requires a new election, I find it unnecessary to reach the question whether the supplemental request should be granted. Nevertheless, I observe that Respondent proffers in its Supple- mental Motion to Reopen the Record that this additional evidence will establish, among other things, that the Petitioner “strategize[d] about how to get [Petitioner] President [Christian] Smalls arrested in an effort to further the [Petitioner’s] campaign,” and that the Petitioner’s “plot to ‘occupy’ and ‘shut down’ [the Employer’s] small group meetings was orchestrated and pre-planned.” In denying the supplemental request, my colleagues find that “[t]he documentary [film] footage as described in the Employer’s . . . Motion . . . is largely duplicative of, or otherwise corroborates, testimony and documentary evidence that the Employer ei- ther already introduced or sought to introduce at the objections hearing.” They further find that, “[t]o the extent the footage contains some nomi- nally new evidence, . . . this evidence would not change the result here” in part because “regardless of whether the Petitioner orchestrated Smalls’ I. The Petitioner filed the underlying petition on Decem- ber 22, 2021, seeking to represent employees employed by the Employer at its JFK8 fulfillment center in Staten Is- land, New York. Over the course of five days between March 25 and 30, 2022, Region 29 conducted a manual election in a parking lot outside the JFK8 building. There were approximately 8325 eligible voters, and the Peti- tioner prevailed by a margin of 523 (2654 to 2131). The Employer filed timely objections, including to the Peti- tioner conduct discussed below, and established the fol- lowing at the objections hearing.2 The Petitioner’s president, Christian Smalls, began to regularly enter the Employer’s private property around the JFK8 building even prior to the start of the critical period. The week before the petition was filed, on December 15, 2021, he was interviewed on the JFK8 property during a livestream on a YouTube channel. In a letter to the Peti- tioner that day, the Employer demanded that “non-em- ployee [Petitioner] members,” such as Smalls, “immedi- ately cease and desist from entering onto” the JFK8 property. Smalls posted to his Twitter account a screenshot of the Employer’s December 15 letter. The fol- lowing day, the Employer further advised the Petitioner that it would “take legal steps to protect its property rights” should “non-employee [Petitioner] organizers,” such as Smalls, “attempt to access [the Employer’s] pri- vate property in the future.” Smalls nevertheless disregard the Employer’s written demands by continuing to trespass on the JFK8 property after the petition was filed. On January 17, 2022, Smalls entered the JFK8 property and distributed Petitioner t- shirts and flyers during a Petitioner rally. On January 31 or February 1, Smalls entered the JFK8 property, set up a table, and distributed Petitioner literature. By letter to the Petitioner on February 2, the Employer again advised that arrest as part of its campaign strategy . . . the arrest (and the circum- stances surrounding it) did not preclude voters from making a free and uncoerced choice in the election.” For the reasons discussed in more detail below, I strongly disagree with their assessment that the Peti- tioner’s repeated and intentional disregard of the Employer’s property rights did not affect employees’ ability to make an uncoerced choice. 2 Because the Employer’s objections also challenged actions of Re- gion 29, the case was transferred to Region 28 for the hearing. Two at- torneys from other Regions were appointed to represent Region 29 at the hearing. The Employer filed a separate request for review seeking to exclude Region 29 from participating as a “party.” I did not participate in the Board’s decision denying review. For the reasons anticipated by Member Ring in dissenting from that decision, I believe that it was a mistake to confer party status on Region 29. Where objections allege regional misconduct, representatives of the accused region should play an impartial, not adversarial, role during the hearing. Here, however, I believe that Region 29’s representatives engaged in behavior exceeding such limits. AMAZON.COM SERVICES LLC 9 “non-employee agents” of the Petitioner, such as Smalls, were “trespassing” by “entering [the Employer’s] private property,” and the Employer would “take legal steps to protect its property rights” if they did not “immediately cease and desist from entering onto” the JFK8 property. The Petitioner again disregard these demands and, by February 2022, had implemented a “more aggressive” and “more militant” strategy that involved “playing the inside game,” including by “disrupting the [Employer’s] captive audience meetings.”3 To this end, on February 7, the Pe- titioner used unit employees—five stipulated Petitioner agents (Conor Spence, Derrick Palmer, Brett Daniels, Ka- ren Ponce, and Angelika Maldonado) and two additional Petitioner supporters (Jason Anthony and Justine Me- dina)—to prevent the Employer from meeting with unit employees in the JFK8 building during their worktime. The Petitioner agents entered the room where the Em- ployer was meeting with about 25 employees and yelled chants, resulting in the Employer canceling that meeting and five others scheduled for later that day. That same evening, the Petitioner gloated that it had “marched into the room and forced [the Employer] to shut the meetings down,” in a Twitter post by Petitioner agent Daniels. The Petitioner’s “inside games” also included using unit employees to destroy the Employer’s campaign materials in the JFK8 building. Around February 17, the Em- ployer’s CCTV cameras recorded four unit employees— three stipulated Petitioner agents (Palmer, Spence, and Daniels) and a Petitioner supporter (Medina)—tearing down posters from walls in the JFK8 building. In addi- tion, another unit employee (Natalie Monarrez) testified that Smalls, as well as stipulated Petitioner agents Palmer and Spence, encouraged unit employees to throw out Em- ployer communications left in breakrooms. Monarrez ex- plained that this encouragement was given by Petitioner agents on the Telegram channel that the Petitioner main- tained throughout the critical period. The Petitioner de- leted that channel shortly after the election, destroying the records in the process. At the same time, Smalls continued to trespass on the JFK8 property, all the while taunting the Employer to call the police. As a pretext for knowingly trespassing, Smalls would deliver food for Petitioner-provided lunches during these visits. Typically, Smalls would be accompanied by at least one cameraperson, employees would meet Smalls 3 As quoted in a news article published on February 16, 2022, during the critical period, Smalls explained: “We’re playing the inside game. We’re occupying the break rooms and have domains in the cafeterias. We are disrupting the captive audience meetings that started back up this week. We are being more militant, a lot more aggressive on the front line; showing the workers that we have collective power.” 4 The Petitioner stipulated that Spence and Daniels were Petitioner agents. Contrary to my colleagues, I find that Anthony was a Petitioner in the JFK8 parking lot to get food trays for the first lunch period and again for the second lunch period, and Smalls would wait in the parking lot for the duration of both lunch periods, about 2 hours in total. It is not clear exactly how many times this occurred. The record includes specific evidence regarding Smalls engaging in such trespassing on three days (February 9, 11, and 23), and a Petitioner witness (Cassio Mendoza) testified that Smalls entered onto the JFK8 property “almost every time” that the Peti- tioner provided lunch to unit employees. When asked to leave by an Employer manger, Smalls typically refused to do so until he was finished. On multiple occasions, Smalls further challenged the manager to “go ahead and call the cops.” Finally, on February 23, Smalls provoked the confron- tation he seemingly wanted. That afternoon, Smalls drove onto the JFK8 property, spent about 5 minutes dropping off food for the first lunch period, and remained on the JFK8 property for over an hour before dropping off food for the second lunch period. Smalls then left his vehicle parked near the front entrance to the JFK8 building, sat with two or three camerapersons at a picnic table between his vehicle and the building, and appeared to record an in- terview. About 30 minutes after Smalls had finished drop- ping off food for the second lunch period, an Employer manager approached him. As before, the manager asked him to leave, and Smalls responded that he was filming an interview and would leave when he was done. The man- ager requested that Smalls leave two more times, but Smalls still refused and challenged the manager to call the police. This time, the Employer contacted the New York City Police Department (NYPD). It explained that Smalls and the camerapersons were refusing to leave, that it was seeking assistance in having them removed, that it wanted the situation to “be handled with discretion” and “without it becoming contentious,” that it would support trespass charges if Smalls and the camerapersons did not leave willingly, and that unit employees were free to stay on the JFK8 property. About 30 minutes after the manager had spoken with Smalls, NYPD officers arrived and, along with the manager, approached Smalls and the cam- erapersons, who were at the picnic table with a group of unit employees that included three Petitioner agents (Spence, Daniels, and Anthony).4 agent, at least during the February 23 incident, as well. First, there is ample evidence that Anthony held himself out as a Petitioner agent throughout the campaign. Anthoney himself testified that he had a “po- sition” as a “lead organizer” for the Petitioner. And among other things, he spoke at Petitioner press conferences and rallies; created the Peti- tioner’s public Facebook group and served as an administrator of that group and the Petitioner’s public Facebook page; recorded videos, in- cluding of the February 7 and 23 incidents, that were provided to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 At the request of the NYPD officers and in their pres- ence, the manager again directed Smalls to leave. Smalls, who was sitting on the picnic table with Spence, re- sponded that he was just visiting. The manager then re- peated the directive to leave, and Smalls repeated that he was just visiting. When an NYPD officer (Bruce Ce- parano) then told Smalls he was trespassing and needed to leave, Smalls said he was visiting Spence and would leave when Spence left. Ceparano again directed Smalls to leave and warned that he would be arrested if he did not. Smalls said that he would leave but still did not. Ceparano yet again directed Smalls to leave and asked him whether he was leaving, “yes or no.” Although initially answering “yes,” Smalls then gestured at Spence and added: “I am going to leave when I want. I am going when he leaves.” Daniels, who was standing behind Smalls, asked the NYPD officers if they were going to arrest every visitor that the Employer had on its property. Smalls stood up and told the NYPD officers that they were “wasting [their] time and money.” And Anthony, who was standing be- hind Smalls and had been recording the incident on his phone, yelled at the NYPD officers about “a violation of the national agreement with the NLRB.” At this point, more than 3 minutes after the NYPD of- ficers had approached Smalls, they again warned him that he would be arrested if he did not leave. Anthony ob- jected, “you can’t do that, that would be a violation.” Smalls responded dismissively that if he was arrested, the charges would be dropped. Ceparano once more warned Smalls that he would be arrested if he did not leave. After Smalls continued to insist that he had a right to stay on the JFK8 property, Ceparano yet again warned him that he would be arrested if he did not leave. Smalls began to walk towards his vehicle, which had remained parked about fifteen feet from the picnic table, but he still did not leave. Smalls then said that he would leave and that the officers could leave. However, when Ceparano explained that they would wait until Smalls left, Smalls said he could not leave until his “driver” left. As Smalls was standing next to the open passenger-side door of his vehicle, Ceparano gave him yet another warn- ing that he would be arrested if he did not leave. Smalls insisted that he had a right to stay on the JFK8 property and, raising his voice, argued that he could not be arrested media and disseminated by the Petitioner during the campaign; and gen- erally acted in a manner that caused unit employees to believe that he was a Petitioner “officer.” Further, far from repudiating the conduct of Anthony resulting in his arrest, the Petitioner, as discussed below, cam- paigned on the events of February 23 and used Anthony’s video of it to do so. Because it thereby knowingly accepted the benefits of the con- duct, the Petitioner is responsible for the actions of Anthony on February 23 as if they were done by a Petitioner agent. See Nexeo Solutions, LLC, 364 NLRB 570, 580 & fn. 30 (2016). for trespassing. Both Anthony and Daniels then directly engaged the officers. Anthony positioned himself between Smalls and the officers, making physical contact with one or two of the officers, and Daniels gestured his hands in an officer’s face. At that point, the NYPD officers finally placed Smalls, Daniels, and Anthony under arrest. The NYPD charged Smalls with “trespass,” “obstructing gov- ernmental administration,” and “resisting arrest.” The Petitioner leveraged the actions of Smalls, Daniels, and Anthony on February 23 in campaign messaging up to the election, even as Smalls continued to trespass on the JFK8 property after his arrest. On the evening of February 23, the Petitioner’s Twitter account announced that organ- izers were arrested for trespassing while engaged in con- duct as part of organizing efforts for the upcoming elec- tion. Smalls tweeted that after he was released, he “rushed back to feed Nightshift.” And on February 24, Smalls tweeted a TikTok video posted by the Petitioner capturing his February 23 arrest, with the post, “[Employer] and the NYPD Union Busting at its finest.” By the end of the day, a 5-minute, 50-second video of the arrest incident rec- orded by Anthony had also been posted to YouTube. The Petitioner also circulated flyers that directed unit employ- ees to a link to watch a video of the arrests. One Petitioner supporter (Pat Cioffi) estimated that he “flipped 400 to 500 voters” by emphasizing the February 23 incident. And just hours before the election, from about 8 p.m. to 10 p.m. on March 23, the Petitioner projected “THEY ARRESTED YOUR COWORKERS” onto the JFK8 building.5 The Petitioner’s “militant” tactics continued through the election itself. On March 25, the first day of the election, the Petitioner’s agents threatened Natalie Monarrez, a sup- porter-turned-opponent of the Petitioner. Monarrez brought a sign to the JFK8 property that stated “I joined [the Petitioner], I left [the Petitioner], I’m voting no” on the front and “We need a national union, not the [Peti- tioner]” on the back. When her shift ended that afternoon, Monarrez held up this sign while standing in the main em- ployee breakroom of the JFK8 building facility.6 The breakroom contained numerous unit employees, and Monarrez spoke to them about her reasons for not support- ing the Petitioner. While she was doing so, three Peti- tioner agents (Maldonado, Daniels, and Palmer) 5 This was part of a rotating series of messages that the Petitioner projected from equipment that was located on a public road just outside the JFK8 property. There were about 10 messages in the rotating series, and the messages rotated to the next message in the series approximately every 30 seconds. 6 Earlier that afternoon, Monarrez had a confrontation in the main employee breakroom after running into three unit employees who were known supporters of the Petitioner (Mendoza, Anthony, and Nieves). AMAZON.COM SERVICES LLC 11 confronted her, yelling that she was a “fucking bitch” and a “fucking traitor.” They attempted to grab her sign while shouting that she “had no fucking right to hold” it. Em- ployee bystanders intervened, moving between Monarrez and the Petitioner agents. Maldonado then showed a pic- ture of Monarrez supporting the Petitioner to the assem- bled unit employees and announced that Monarrez “had no right to vote no.” Daniels and Palmer left, but Maldo- nado continued the confrontation, announcing to everyone that she was going to “kick [Monarrez’s] ass in the parking lot,” to “take [her] outside” and “beat [her] up.” The Pe- titioner agents’ confrontation with Monarrez lasted about 10 minutes in total.7 After the election, the Petitioner openly concluded that it won by its “militant,” “aggressive” “inside games.” For example, when asked about the February 23 incident on a podcast shortly after the tally of the ballots, Smalls re- sponded, “that was a gem, they lost the election right there. Trust me, we knew that workers were upset about me get- ting arrested . . . the people who were undecided or on the fence about the union, they was like full on we with y’all. That was the turning point, they lost the election right there.”8 II. An election must be set aside if party conduct “reason- ably tended to interfere with the employees’ free and un- coerced choice in the election.” Baja’s Place, 268 NLRB 868 (1984). Party conduct can satisfy this standard solely because of the message that it sends to employees. For instance, an employer’s “well-timed” increasing of bene- fits is objectionable because “[e]mployees are not likely to miss the inference that the source of benefits now con- ferred is also the source from which future benefits must flow and which may dry up if it is not obliged.” NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). Likewise, a union’s “direct challenge” to the employer’s “assertion of its property rights” is objectionable because “the mes- sage undoubtedly conveyed” is that the employer “is pow- erless to protect its own legal rights in a confrontation” with the union. Phillips Chrysler Plymouth, Inc., 304 7 Also during the election, the Board Agent established a “no-elec- tioneering zone” on the first day of the election, March 25. Multiple unit employees, however, testified to observing Petitioner agents violating this zone, including specifically to observing Smalls within the no-elec- tioneering zone during the election hours on March 25. As the Regional Director noted, the credited testimony establishes Smalls had a “pres- ence,” if not a “ubiquitous” one, within the no-electioneering zone during the election hours. The record also reflects that media members, as well as a documentary crew, were present in and around the no-electioneering zone while the polls were open, that media members conducted interviews with voters while they waited in line to vote, and that media members appeared to photograph and record voters while they were in line. NLRB 16, 16 (1991). Moreover, a party’s misconduct must be “considered cumulatively.” Avis Rent-A-Car Sys- tem, 280 NLRB 580, 581 (1986); see also Robbins & My- ers, Inc., 241 NLRB 102, 105 (1979) (finding the em- ployer’s “misrepresentations occurring together” war- ranted setting aside the election, where “in some circum- stances each of the misrepresentations . . . might not war- rant setting aside the election” standing alone). Accord- ingly, a party’s misconduct requires a new election when, taken together, it “could have changed the outcome.” Id. Applying this precedent here, I find that the election must be set aside. The Petitioner’s course of conduct in challenging the Employer’s property rights sent the same objectionable message as in Phillips. Smalls’s trespassing, alone, was a sustained, “aggressive,” direct challenge to the Em- ployer’s assertion of its property rights. Consistently re- fusing to comply with the Employer’s demands, Smalls knowingly and repeatedly trespassed on the JFK8 prop- erty before and during the critical period. On multiple oc- casions, Smalls refused to comply with the Employer’s written demands that the Petitioner not trespass on its property, and Smalls expressly refused the Employer’s oral commands to leave the JFK8 property, challenging the Employer to involve the police. After the NYPD ar- rived on February 23, Smalls continued to assert that he, not the Employer or the NYPD, would decide when he would leave. The NYPD ultimately found it necessary to arrest Smalls given his continued defiance of its orders. Rather than being deterred by his arrest, Smalls went right back to trespassing on the JFK8 property after he was re- leased. But the relevant Petitioner conduct was in no way lim- ited to Smalls. During the February 23 incident, two other Petitioner agents (Daniels and Anthony) physically and verbally accosted NYPD officers as the officers were at- tempting to enforce the Employer’s property rights and ul- timately were arrested along with Smalls. Moreover, the Petitioner’s “militant,” “aggressive” “inside games” in- cluded “shut[ting] down” Employer meetings with unit employees, tearing down Employer posters,9 and throwing In addition, Anthony, who was serving as one of the Petitioner’s elec- tion observers, was seen with a cell phone on his person throughout the voting session. At least three times, Board agents had to tell Anthony to turn his cell phone off and put it away. 8 I find the Hearing Officer erred in rejecting this evidence, which is admissible as a nonhearsay party admission under Federal Rule of Evi- dence 801(d)(2). See, e.g., Ferguson Enterprises, 355 NLRB 1121 fn. 2 (2010). I find it unnecessary to reach whether the Hearing Officer oth- erwise erred in precluding the Employer from fully presenting evidence regarding the impact of the Petitioner’s objectionable conduct. 9 My colleagues observe that, by tearing down the Employer’s post- ers, the Petitioner did not interfere with the Employer’s “extensive anti- organizing campaign,” which “largely [continued] without interruption.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 out other Employer communications. All of this activity represented a sustained, direct challenge to the Em- ployer’s property rights. My colleagues do not, and cannot, distinguish Phillips. Despite their contentions otherwise, every time that Smalls entered the JFK8 property, he was refusing to com- ply with the Employer’s repeated written and oral de- mands to not trespass. And every time that he was orally directed to leave the JFK8 property, he claimed a prerog- ative to trespass at will and sought to provoke a confron- tation with police. When doing so on February 23, he re- peatedly flouted the directives from the police, challenged the authority of the police, and only “left the property” be- cause of his arrest, over 6 minutes after the police arrived and began ordering him to leave. The videos of the con- frontation posted by the Petitioner clearly establish that Smalls, Anthony, and Daniels refused to comply with the Employer’s demands and the NYPD’s repeated orders that they leave the Employer’s property. In doing so, Anthony made physical contact with one or two police officers, Daniels gestured his hands in an officer’s face, and Smalls was charged with, among other infractions, resisting ar- rest. If anything, the objectionable message was stronger and clearer here than in Phillips. In that case, the union “did not assault or threaten” anyone, the police did not arrest anyone and indeed “did not insist that the [union] leave,” and what the Board labeled “belligerent” conduct in that case was “harsh words” towards the employer and not leaving upon the police being “summoned.” 304 NLRB at 16–17. Here, during the February 23 incident alone, Petitioner agents sought out a confrontation with the NYPD, escalated that confrontation, and were arrested for it. And the February 23 incident was simply the culmina- tion of repeated violations of the Employer’s property rights and destruction of its property, including breaking up its small group meetings and tearing down its posters. The Petitioner’s challenge was more direct, more sus- tained, and more “aggressive” than the challenge in Phil- lips. And whereas there was only a single incident in front of employees in Phillips, the entirety of the Petitioner’s repeated flouting of the Employer’s authority was dissem- inated throughout the unit here. For instance, the Peti- tioner publicized to voters that Smalls was refusing to comply with the Employer’s written demands when, on Twitter, Smalls posted a screenshot of the Employer’s De- cember 15 written demand that he not enter its property but continued to openly ignore that demand. Likewise, the Petitioner recorded, published, and publicized videos of Be that as it may, the Petitioner’s misconduct was part and parcel of its wider “aggressive” actions, which vividly demonstrated to the unit em- ployees that it was “powerless” to protect its property rights. him being arrested by NYPD on February 23. And after he was released, Smalls defiantly posted on Twitter that he would continue to trespass on the Employer’s property. Nor do my colleagues cite any case distinguishing Phil- lips on relevant grounds. Instead, they cite cases where, unlike here, the union did not mount a sustained or “ag- gressive” challenge—where the employer “never as- serted its property rights in the first place,” Edward J. De- Bartolo Corp., 313 NLRB 382, 382–383 (1993), where the union “left the premises when told to do so” by the employer, Station Operators, 307 NLRB 263, 263 (1992), where the union complied with employer demands after “relatively short intervals” and without any “flat refusal to leave” or any “significant resistance,” Champaign Resi- dential Services, Inc., 325 NLRB 687, 688 (1998), and where a well-known third party accompanied the union onto the employer’s property “briefly,” had a “quiet and civil” interaction with the employer, and did not incite em- ployees into a “frenzy,” NLRB v. Earle Industries, Inc., 999 F.2d 1268, 1273–1274 (8th Cir. 1993). As in Phillips, the election was tainted by the Peti- tioner’s challenge to the Employer’s property rights. Alt- hough my colleagues emphasize that the February 23 in- cident was weeks prior to the election, the objectionable message never dissipated. Smalls never stopped trespass- ing on the JFK8 property, and the Petitioner never stopped campaigning on the incident. Just hours before the elec- tion began, the Petitioner projected “THEY ARRESTED YOUR COWORKERS” onto the JFK8 building. My col- leagues also assert that “the election was not close.” How- ever, the election margin here was 10.8 percent of valid votes cast. This is closer than in Phillips, where it was 20 percent of valid votes cast. More to the point, there is no actual dispute that the ob- jectionable message here, just like in Phillips, “could have changed the outcome.” 304 NLRB at 16. As discussed above, the Petitioner itself attributed its victory to its ob- jectionable conduct, concluding that the culmination of its repeated acts of trespass and destruction of property—the February 23 incident—was the “turning point” when the Employer “lost” the election. Instead of substantively ad- dressing that Petitioner admission, my colleagues empha- size that party “conduct is not objectionable merely be- cause it influences or affects how employees choose to vote. Rather, [it] is objectionable when it prevents em- ployees from making a ‘free and uncoerced’ choice.” They therefore conclude that “[a]lthough Smalls’ alleged trespass and arrest may have prompted employees to feel sympathetic towards the Petitioner, nothing in the conduct AMAZON.COM SERVICES LLC 13 precipitating the arrest can reasonably be construed as co- ercive towards voters or otherwise tending to interfere with their free choice.” As discussed above, however, un- ion conduct is objectionable under Phillips precisely be- cause of the coercive message it conveys. 304 NLRB at 16 (“The message undoubtedly conveyed to employees by the union agents’ conduct was that the [e]mployer was powerless to protect its own legal rights in a confrontation with the [u]nion.”) And although the above is enough to require a new elec- tion, the same coercive message was on display in the Pe- titioner’s “militant” actions against Monarrez, an out- spoken opponent of the Petitioner. In a breakroom being used by unit employees and during the election, the Peti- tioner’s agents threatened physical violence against Monarrez for exercising her right to oppose the Petitioner. They called her a “fucking bitch” and a “fucking traitor.” They yelled that she “had no fucking right to hold” an anti- Petitioner sign or “to vote no.” And the Petitioner threat- ened to “kick [Monarrez’s] ass in the parking lot,” to “take [her] outside” and “beat [her] up.” This conduct was so alarming that other nearby employees felt the need to in- tervene to protect Monarrez. The message conveyed by this conduct could not be lost on Monarrez or the other unit employees present: the Petitioner would deal aggres- sively with any “traitor[s]” who did not support it. Such behavior, of course, is objectionable party conduct. See, e.g., Robert Orr-Sysco Food Serv., 338 NLRB 614, 614 (2002) (finding objectionable conduct under higher stand- ard applicable to third parties, based on threat to “crack [an employee’s] head” if employee did not vote for the union and crossed the picket line). My colleagues do not dispute that the Petitioner’s conduct was threatening and inappropriate; instead, they simply find that, standing alone, the Petitioner’s misconduct does not “warrant[] set- ting aside an election.” But of course that is no answer because we do not look at misconduct in isolation. See Avis Rent-A-Car System, 208 NLRB at 581; Robbins & Myers, 241 NLRB at 105. And the Petitioner’s “militant” stance towards “traitors” like Monarrez was part and par- cel of its “aggressive” “inside games” toward the Em- ployer more generally. In this case, the Petitioner by its own terms wanted to communicate a position of strength and power to unit em- ployees—that it would fight anyone or anything that stood in its way. And it did just that. But in doing so, I believe that the Petitioner clearly crossed the line and “reasonably tend[ed] to interfere with the employees’ free and unco- erced choice in the election.” I would therefore grant re- view and direct a new election so that employees can vote free of such objectionable conduct.10 Dated, Washington, D.C. August 29, 2024 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD 10 I agree with my colleagues that, based on the specific facts here, the Petitioner’s disregard of the Board Agent’s no-electioneering zone and the Board Agent’s instructions not to use cell phones in the polling area during the election do not constitute objectionable conduct. However, I find that conduct troubling in light of the Petitioner’s other misconduct. And I believe that the Board should consider adopting a blanket rule that the use of an electronic device by a party observer constitutes objection- able conduct by the party. I also agree with my colleagues that the actions of the media in vio- lating the no-electioneering zone do not constitute objectionable conduct under the Board’s third-party standard. Nevertheless, I believe that the Board, in a future appropriate case, should reconsider the standard appli- cable to the conduct of third parties such as the media in no-electioneer- ing zones. Finally, based on my findings above, I find it unnecessary to reach the issue of whether there was additional objectionable conduct, including whether any such objectionable conduct was adequately identified and fully and fairly litigated.