This National Labor Relations Board Administrative Law Judge (ALJ) decision addresses unfair labor practices alleged against A-V Services, Inc. (A-V) and objections to a representation election filed by International Alliance of Theatrical Stage Employees Local 59 (Local 59). The ALJ found that A-V violated Sections 8(a)(1) and (3) of the National Labor Relations Act (the Act) by engaging in several retaliatory actions against its Jersey City technicians after they began organizing and petitioning for a representation election.

The ALJ found that A-V unlawfully informed its Jersey City technicians that they would no longer be assigned to work at other A-V locations, such as Brooklyn, specifically due to their union activity. This action, along with the subsequent cessation of such inter-location assignments, was deemed a violation of Sections 8(a)(1) and (3) as it served to isolate union supporters and reduce their work opportunities. The ALJ also found that A-V's conduct created the impression of unlawful surveillance by increasing the presence and scrutiny of higher-level management, including John Concepcion and Michael Hagadorn, at the Jersey City facility. This heightened management presence and altered supervisory style, occurring after Local 59's recognition request, led reasonable employees to believe their union activities were being monitored, thus violating Section 8(a)(1).

Further, the ALJ determined that Michael Hagadorn unlawfully impliedly threatened an employee, Michael Cozine, with the loss of promotional opportunities if Local 59 prevailed in the election. This statement, made on the day of the election, suggested that the union's presence would hinder career advancement, violating Section 8(a)(1). Additionally, A-V was found to have violated Sections 8(a)(1) and (3) by implementing a market rate wage increase for technicians at its other locations while deliberately withholding it from the Jersey City technicians. This differential treatment, directly tied to the union organizing efforts, was considered an inherently discriminatory act aimed at discouraging union support.

The ALJ also found that A-V unlawfully reduced the overtime opportunities and hours for the Jersey City technicians in retaliation for their union activities. Evidence presented, including statements from management about potential hour reductions tied to unionization, coupled with the lack of a credible business justification for the reduction, supported this finding under the Wright Line framework.

However, the ALJ dismissed the allegations concerning the progressive disciplinary warnings issued to Eddy Saintil. While acknowledging Saintil's union support and A-V's general anti-union animus, the ALJ found that A-V presented sufficient legitimate, non-discriminatory reasons for the discipline, largely based on Saintil's admitted tardiness and conduct, and the fact that other employees were also disciplined for similar issues, albeit in a manner that did not indicate disparate treatment compared to Saintil's specific infractions.

Based on the findings of multiple serious and pervasive unfair labor practices, particularly the "hallmark" violation of withholding the market rate wage increase and the elimination of inter-location work opportunities, the ALJ concluded that traditional remedies would be insufficient to ensure a fair election. Therefore, the ALJ sustained Local 59's objections to the election and recommended that the election be set aside. Crucially, the ALJ granted General Counsel's request for a Gissel bargaining order, finding that Local 59 had demonstrated majority support at the time of its recognition request and that A-V's unfair labor practices had so undermined the possibility of a fair rerun election that employee sentiment would be better protected by ordering A-V to bargain with Local 59.

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): This case established the framework for analyzing discriminatory discharges and other adverse employment actions, requiring the General Counsel to prove protected activity was a motivating factor and the employer to prove the same action would have been taken in its absence.
• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): This landmark Supreme Court decision permits the NLRB to issue a bargaining order even in the absence of a union winning an election if the employer's unfair labor practices have made a fair election impossible and the union had previously demonstrated majority support.
• Great Dane Trailers, Inc., 388 U.S. 26 (1967): This Supreme Court case provides the framework for analyzing employer actions that discriminate on their face between union and non-union employees, determining when anti-union motivation must be proven.
• Charter Communications, LLC, 366 NLRB No. 46 (2018): This case illustrates that actions taken to isolate union supporters, such as altering work locations or assignments, can violate Sections 8(a)(1) and (3) of the Act.
• Starbucks Corp., 374 NLRB No. 10 (2024): This case addresses the creation of an unlawful impression of surveillance through increased management presence and altered supervisory observation, violating Section 8(a)(1).

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