Cablevision Systems Corp.

National Labor Relations Board - Board Decisions

Dec 19, 2018

367 NLRB No. 59 (N.L.R.B. 2018)

367 NLRB No. 59
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.
Cablevision Systems Corp. and Tiffany Oliver and
Communications Workers of America,
AFL−CIO. Case 29–RD–138839
December 19, 2018
DECISION ON REVIEW AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN, AND EMANUEL
The question presented in this case is whether the Re-
gional Director erred in dismissing a decertification peti-
tion, filed in 2014, on the basis of unfair labor practice
charges that were settled after administrative law judges
had found them meritorious but before they had been re-
solved by the Board.1 This issue has significant conse-
quences for the right of the unit employees to express their
views concerning representation. Because the parties’ set-
tlement includes agreement on a new 3-year collective-
bargaining agreement effective June 15, 2016, dismissal
of the petition could potentially prevent an election in this
unit until, at the earliest, 2019.2 Contrary to the Regional
Director, we find that the Board’s decision in Truserv
Corp., 349 NLRB 227 (2007), precludes the dismissal of
an election petition on the basis of settled unfair labor
practice charges in the circumstances presented here. Ac-
cordingly, we grant the Employer’s request for review, re-
verse the Regional Director’s decision, and remand the
case for the purpose of processing the petition.
I. FACTS
The Employer provides cable television and telecom-
munications services at various locations, including in
Brooklyn, New York, the sole location at issue here. On
February 7, 2012, the Union was certified as the exclusive
collective-bargaining representative of the Employer’s
Brooklyn employees. Beginning early in 2013, the Union
filed a series of unfair labor practice charges, alleging that
the Employer had violated Section 8(a)(5), (3), and (1) of
the National Labor Relations Act on numerous occasions
from May 2012 through August 2013. The Regional

1 The Regional Director issued her Decision and Order on November
23, 2016. The Employer filed a timely request for review, and the Union
filed a statement in opposition. The Employer’s motion to strike the Un-
ion’s statement in opposition is denied.
The Board adopted certain changes to its representation-case proce-
dures effective April 14, 2015. We have considered the instant petition
under the procedures that were in effect on the date it was filed, October
16, 2014.
2 See, e.g., General Cable Corp., 139 NLRB 1123 (1962).
Director investigated, found merit in the charges, and is-
sued complaints, which were ultimately consolidated for
hearing before Administrative Law Judge Steven Fish.
While these cases were pending before Judge Fish, the
Union filed further charges, alleging additional violations
of Section 8(a)(5), (3), and (1) during July through De-
cember 2014. Again, the Regional Director found merit
in the charges and issued complaints, which were consol-
idated for hearing before Administrative Law Judge Ray-
mond P. Green.
It is undisputed that, as early as July 31, 2014, the Em-
ployer was informed that several unit employees were col-
lecting signatures in support of a decertification petition,
and in August 2014 the Employer learned that there were
in excess of 100 signatures supporting the petition. Those
signatures were gathered despite the Union’s unlawful
threats to sue the employees who solicited them.3 On Oc-
tober 16, 2014, before either Judge Fish or Judge Green
had issued a decision, the Petitioner filed the instant de-
certification petition. On November 12, 2014, the Re-
gional Director dismissed the petition, subject to reinstate-
ment, pursuant to the Board’s blocking charge policy,
based on complaint allegations in the cases pending before
Judges Fish and Green. The Employer timely requested
review of the Regional Director’s decision to dismiss the
petition.
On December 4, 2014, while the Employer’s request for
review was pending with the Board, Judge Fish issued his
decision in CSC Holdings, LLC and Cablevision Systems
New York City Corporation, JD(NY)-47-14, 2014 WL
6853881 (2014) (Fish JD). Judge Fish concluded that (i)
in January 2013, the Employer unlawfully refused to rein-
state economic strikers who had not been permanently re-
placed, albeit all of the employees were returned to work
over the next 2 months; (ii) also in January 2013, two su-
pervisors made isolated comments restricting employees’
union activity and threatening that bargaining would be
futile; and (iii) in July and August 2013, the Employer
changed employees’ terms and conditions of employment
without affording the Union notice or an opportunity to
bargain when it implemented and then cancelled training
for unit employees on a new technology that it had previ-
ously provided to nonunit employees. Judge Fish also
3 See Communication Workers of America Local 1109, AFL-CIO
(Cablevision Systems New York City Corp.), JD(NY)-22-16, 2016 WL
3213006 (2016) (finding that a union agent threatened to sue three em-
ployees for circulating a decertification petition and thereafter, in a letter
disseminated to all employees for whom the union had email addresses,
reiterated a threat to take unspecified legal action against employees for
collecting signatures for decertification). On July 21, 2016, the Board
adopted the judge’s decision in the absence of exceptions. Communica-
tion Workers of America Local 1109, AFL−CIO (Cablevision Systems
New York City Corp.), 2016 WL 3964994 (2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
found that the Employer violated Section 8(a)(1) in nu-
merous other respects at its Bronx, New York facilities,
outside of the Brooklyn bargaining unit at issue here. The
judge dismissed other complaint allegations, including the
8(a)(5) surface bargaining allegations. Thereafter, the
Employer filed exceptions, as did the other parties to the
case.
On April 19, 2016, Judge Green issued his decision in
CSC Holdings, LLC and Cablevision Systems, New York
City Corporation, JD(NY)-9-16, 2016 WL 1580001
(2016) (Green JD). Judge Green found that, on Septem-
ber 10, 2014, the Employer conducted an unlawful coer-
cive poll asking employees whether they wanted to con-
tinue to be represented by the Union. Judge Green also
found that, on July 7, 2014, the Employer unlawfully
threatened to cause the arrest of an employee who was
playing prounion songs on his car stereo in the parking lot
of the Employer’s headquarters. Judge Green dismissed
several other complaint allegations that the Employer had
violated Section 8(a)(5), (3), and (1), including allegations
involving postpetition conduct. Thereafter, the Board
granted two extensions of time to file exceptions to Judge
Green’s decision, the second of which extended the filing
deadline to July 22, 2016.4
On June 30, 2016, the Board denied the Employer’s
2014 request for review. In denying review, the Board
primarily relied on allegations in the case before Judge
Fish that the Employer had engaged in surface bargaining.
On July 1, 2016, the Employer and the Union submitted to
the Board a joint motion for approval of a non-Board set-
tlement agreement, providing for settlement of the charges
addressed in Fish JD, Green JD, and Landow JD 1.5 The
joint motion stated, inter alia, that the Employer agreed to
make whole the employees discharged on January 30,
2013, for lost wages resulting from their removal from the
Employer’s payroll, and that the parties agreed to enter
into a new 3-year collective-bargaining agreement

4 Two other cases against the Employer were also litigated before
Administrative Law Judge Mindy E. Landow. On May 20, 2016, Judge
Landow issued her decision in one of them: CSC Holdings, LLC, and
Cablevision Systems Corp., JD(NY)-15-16, 2016 WL 2957329 (2016)
(Landow JD 1) (finding that, on June 8, 2015, the Employer unlawfully
discharged an employee from its Jericho, New York facility because of
her union activity).
5 It was not until September 23, 2016 that Judge Landow issued her
decision in the second case against the Employer litigated before her:
CSC Holdings, LLC and Cablevision Systems New York City Corp.,
JD(NY)-37-16, 2016 WL 5351178 (2016) (Landow JD 2) (finding that,
on May 7, 2014, the Employer unlawfully transferred six employees out
of its Bronx, New York facility). On May 11, 2017, the Board affirmed
the judge’s unlawful transfer finding in Landow JD 2 in CSC Holdings,
LLC and Cablevision Systems New York City Corp., 365 NLRB No. 68
(2017).
6 The Regional Director’s Decision and Order dismissing the petition
states that the parties “agreed that the collective-bargaining agreement
effective June 15, 2016.6 On July 14, 2016, the Board ap-
proved the settlement and remanded the matter to the Re-
gional Director for further appropriate action. Thereafter,
the Union withdrew the unfair labor practice charges that
were litigated in Fish JD and Green JD.
On August 26, 2016, the Petitioner requested that the
Regional Director reinstate the decertification petition.
II. THE REGIONAL DIRECTOR’S DECISION AND THE
REQUEST FOR REVIEW
The Regional Director denied the Petitioner’s request to
reinstate the petition and dismissed it solely on the basis
of the settled charges that Judges Fish and Green found
had merit in Fish JD and Green JD.7 Applying the
Board’s causation analysis described in Master Slack
Corp., 271 NLRB 78, 84 (1984), the Regional Director
found that a causal relationship between the Employer’s
conduct and the loss of support for the Union tainted the
petition and warranted its dismissal. The Regional Direc-
tor also found that she was not required to reinstate the
petition under Truserv, supra. There, the Board held that
when the processing of a decertification petition has been
blocked by unfair labor practice charges, the petition
should normally be reinstated and processed when the
charges are resolved by a settlement because a settlement
does not constitute a finding or an admission that an em-
ployer had engaged in unfair labor practices, unless such
an admission is an express part of the agreement. See 349
NLRB at 228. The Regional Director reasoned that, un-
like in Truserv, the unfair labor practice allegations here
were extensively litigated, voluminous evidentiary rec-
ords were developed, and multiple administrative law
judges found that the Employer had committed numerous
egregious and widespread violations of the Act impacting
the bargaining unit. Thus, she concluded that Fish JD and
Green JD constitute a finding of a violation of the Act
then in effect between the Employer and the Union would be modified,
renewed and extended for an additional 3-year period beginning June 15,
2016.”
7 The Regional Director cited the decisions in Landow JD 1 and
Landow JD 2, acknowledged that they involved alleged unfair labor
practices affecting employees outside the Brooklyn unit, and made no
finding that the alleged conduct affected Brooklyn unit employees’ sup-
port for the Union. No party contends that the Regional Director erred
in this respect. The Regional Director also made no finding that alleged
conduct affecting non-Brooklyn unit employees addressed in Fish JD
and Green JD caused disaffection from the Union among Brooklyn unit
employees, and no party has requested review of her failure to do so. In
its opposition to the 2016 request for review, the Union states that unfair
labor practices found by Judge Fish involving facilities outside Brooklyn
“had a lasting effect on employees in Brooklyn discouraging support for
the Union there as well.” However, the Union points to no evidence that
would support such a finding.
CABLEVISION SYSTEMS CORP. 3
sufficient to support dismissing the petition under Master
Slack and Truserv.
The Employer requests review of the Regional Direc-
tor’s Decision and Order.8 It argues that the Regional Di-
rector erred both by misapplying Board law and by finding
a causal relationship between the Employer’s alleged con-
duct and the decertification petition without holding an in-
dependent evidentiary hearing on that issue. For the rea-
sons set forth below, we find merit to the Employer’s con-
tention that the petition should be reinstated pursuant to
Truserv. Accordingly, we grant the Employer’s request
for review and reverse the Regional Director’s administra-
tive dismissal of the petition.
III. ANALYSIS
In Truserv, the Board held that when a decertification
petition has been blocked by subsequently settled unfair
labor practice charges, “a timely filed decertification peti-
tion that has met all of the Board’s requirements should be
reinstated and processed at the petitioner’s request follow-
ing the parties’ settlement and resolution of the unfair la-
bor practice charge.”9 As in Truserv, this case involves
“the following sequence of events: allegedly unlawful
conduct; the filing of a decertification petition; the settle-
ment of the unfair labor practice case alleging the unlaw-
ful conduct, which settlement does not include an admis-
sion of unlawful conduct on the part of the Employer.” Id.
at 227. As the Board recognized in Truserv, “a settlement
agreement is not an admission that the employer’s actions,
alleged but not found to be unlawful, constituted an unfair
labor practice unless such an admission is an express part
of the agreement. Consequently, the fact that the alleged
actions occurred prior to the filing of the decertification
petition provides no basis for a conclusion that the petition
was tainted by unlawful conduct.” Id. at 228. Accord-
ingly, “absent a finding of a violation of the Act, or an

8 We reject the Union’s contention that the Employer lacks standing
to file the request for review because it was acquired by Altice USA in
2016. The Board’s rules in effect prior to April 14, 2015, which we apply
here, provide for review of a Regional Director’s decision upon request
by “any party.” Board’s Rules and Regulations Sec. 102.67(b) (2014).
The Union has failed to establish that Cablevision, the entity named in
the petition, is no longer a party to this case, or that the instant request
for review was not filed by, or on the authority of, the entity that currently
employs the unit employees.
9 Truserv, 349 NLRB at 228. A decertification petition will not be
reinstated if “(a) the execution of the settlement of the unfair labor prac-
tice charge comes before the filing of the petition; (b) the Regional Di-
rector finds that the petition was instigated by the employer or that the
employees’ showing of interest in support of the petition was solicited
by the employer; or (c) the settlement of the unfair labor practice charge
includes an agreement by the decertification petitioner to withdraw the
petition.” Id. at 227. None of these exceptions applies here: in this case,
the settlement agreement was executed in 2016, long after the petition
was filed in 2014; there is no claim or indication that the Employer was
admission by the employer of such a violation, there is no
basis for dismissing a petition based on a settlement of al-
leged but unproven unfair labor practices. To do so would
unfairly give determinative weight to allegations of un-
lawful conduct and be in derogation of employee rights
under Section 7 of the Act.” Id.
Consistent with Truserv, the unfair labor practice alle-
gations addressed in Fish JD and Green JD, which were
settled by agreement of the parties with no admission of
wrongdoing by the Employer, furnish no basis for refusing
to reinstate the petition. Simply put, Truserv requires that
a petition be reinstated after a settlement agreement is ex-
ecuted “absent a finding of a violation of the Act, or an
admission by the employer of such a violation.” Truserv,
supra at 228. A judge’s violation finding is insufficient to
render Truserv inapplicable where, as here, the charges
were settled prior to final action by the Board. See Nu-
Aimco, Inc., 306 NLRB 978, 979 (1992) (“[N]either with-
drawal of the charge and complaint, nor the execution of
an informal settlement agreement, constitutes an admis-
sion by the employer, or an adjudication by the Board, that
an unfair labor practice has been committed in violation of
the Act.”) (emphasis added).10
Neither Fish JD nor Green JD was a final decision by
the Board that the Employer had committed any unfair la-
bor practices, and neither imposed any obligation on the
Employer absent further action by the Board.11 To the
contrary, those decisions became a nullity when the Em-
ployer and Union settled the relevant charges, the Board
remanded the cases to the Regional Director, and the Re-
gional Director approved the Union’s request to condi-
tionally withdraw the charges pending the Employer’s
compliance with its financial obligations under the settle-
ment. See St. Vincent Medical Center, 338 NLRB 888,
888 (2003) (refusing to rely on findings by an administra-
tive law judge in a case pending before the Board on
involved in the petition in any way; and the settlement agreement did not
provide for the withdrawal of the petition.
10 In Nu-Aimco, the Board carefully distinguished between unfair la-
bor practice allegations settled “prior to a final litigation on the merits”
and “a successfully litigated prosecution of unfair labor practices culmi-
nating in a finding of a violation based on evidence introduced at a hear-
ing and subjected to cross-examination.” 306 NLRB at 979 fn. 7 (em-
phasis added) (citing Mine Workers (Island Creek Coal), 302 NLRB 949
(1991)).
11 See Board’s Rules and Regulations in effect prior to April 14, 2015,
Sec. 102.48(b) (providing that when, as here, timely exceptions are filed,
“the Board may decide the matter forthwith upon the record, or after oral
argument, or may reopen the record and receive further evidence before
a Member of the Board or other Board agent or agency, or may make
other disposition of the case”) (emphasis added). As noted above, at the
time of the settlement, Fish JD was pending before the Board on excep-
tions, and the period of time for filing exceptions in Green JD had yet to
expire.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
exceptions because “the judge’s findings therein are not
binding authority”), enf. denied and remanded 463 F.3d
909 (9th Cir. 2006). Subsequently, the Region adminis-
tratively closed the cases. There is simply no valid basis
for refusing to reinstate a petition based on alleged unfair
labor practices when, as here, the relevant charges have
been withdrawn.
Our dissenting colleague assumes that the findings de-
scribed in Fish JD and Green JD must be taken as irrefu-
tably true. Building on this assumption, our colleague
concludes that the conduct undermined the Union, inter-
fered with employees’ organizational activities, and
tended to erode support for the Union, and that the Em-
ployer intended all this. The scale and scope of this mis-
conduct warrants dismissal of the petition, the dissent con-
tends.
The dissent correctly acknowledges that the parties’ set-
tlement precludes any finding that the Employer violated
the Act, and that the Regional Director erred in finding
otherwise. Our colleague errs, however, in her view that
the judges’ factual findings stand on a different footing
than their conclusions of law. The parties settled the un-
fair labor practice allegations, the Employer did not admit
wrongdoing, and the nonadmission of wrongdoing applies
to both findings of fact and conclusions of law. Unfair
labor practice allegations that administrative law judges
have adjudicated but the Employer has settled without ad-
mitting wrongdoing cannot, as Truserv is properly under-
stood, be considered “evidence presented” that the Em-
ployer committed the unfair labor practices alleged.

12 We disagree with the dissent that the Board’s failure to vacate the
judges’ decisions warrants a different result. Nothing in Truserv justifies
this distinction, which would improperly elevate form over substance in
a case where, as here, the underlying charges were withdrawn.
13 In finding otherwise, the dissent relies on inapposite cases dealing
with election objections and that did not involve allegations that were
settled, as here. See Virginia Concrete Corp., 338 NLRB 1182, 1184
(2003) (withdrawn unfair labor practice allegation did not require over-
ruling coterminous election objection); ADIA Personnel Services, 322
NLRB 994, 994 fn. 2 (1997) (dismissed unfair labor practice allegation
did not require overruling coterminous election objection). The dissent
also mistakenly relies on Canter’s Fairfax Restaurant, 309 NLRB 883,
884 (1992). In approving a settlement of unfair labor practice charges in
that case, the Board noted that nothing prevented the Regional Director
from dismissing the decertification petition if his investigation revealed
the employer’s direct involvement in the decertification effort. Contrary
to the dissent, the Board there specifically noted that longstanding prec-
edent provides “that a Regional Director may only dismiss a petition as
tainted on the basis of his or her administrative investigation of the peti-
tion’s showing of interest where that investigation has revealed direct
employer involvement with the petition.” Id. at 884 fn. 1 (emphasis in
original). The dissent’s claim that Canter’s is applicable to allegations
of indirect taint is thus without merit. Here, as previously noted, there is
no indication that the Employer was involved in the decertification ef-
fort.
Truserv, 349 NLRB at 233. To the contrary, it would con-
travene due process to give determinative effect to these
allegations, which the Employer merely agreed to settle,
“nothing more and nothing less.” Id. at 232.12 The impli-
cations for the decertification petitioner would be espe-
cially harsh: her petition would be dismissed based on
findings that she will never have any opportunity to chal-
lenge in any forum. Accordingly, rather than “ab-
dicat[ing]” our duty to determine the validity of election
petitions, as the dissent charges, we are safeguarding em-
ployees’ Section 7 rights by reinstating a decertification
petition after allegations potentially tainting it have been
settled. Id.13
In sum, the parties’ settlement of those cases without
final action by the Board precludes any conclusion that the
Employer’s conduct at issue there violated the Act. And
no such finding can be made in this proceeding, consistent
with the long-established rule that the Board will not make
a determination on unfair labor practices in a representa-
tion proceeding. Times Square Stores Corp., 79 NLRB
361, 365 (1948). Accordingly, the petition must be rein-
stated. See Truserv, supra; Nu-Aimco, supra.14
CONCLUSION
In this case, a decertification petition timely filed in
2014 has been blocked by pending unfair labor practice
charges for more than three years. Were the Regional Di-
rector’s refusal to reinstate the petition to prevail, the par-
ties’ 2016−2019 collective-bargaining agreement could
potentially prevent a new petition from being processed
until 2019 pursuant to the Board’s contract-bar doctrine.15
Saint Gobain Abrasives, Inc., 342 NLRB 434 (2004), also cited by the
dissent, does not support her position. Our colleague posits that the
Board there affirmed that a petition could be found to be tainted “on the
basis of unfair labor practice proceedings,” but in fact the Board required
much more than a “proceeding.” Instead, the Board held that, unless
“[t]he General Counsel established, at a hearing, that there were unfair
labor practices and that there was a causal nexus between that unlawful
conduct and the employee disaffection,” a decertification petition could
not be administratively dismissed based on allegations that employer
conduct caused the disaffection absent a hearing at which the parties to
the representation case—including the decertification petitioner—could
present evidence on the issue of taint. Id. at 434. Moreover, a Regional
Director’s findings at such a hearing may be appealed to the Board. The
dissent, in contrast, would hold that the factual findings in Fish JD and
Green JD are binding on all of the parties to this case, even though the
decertification petitioner was not a party to the unfair labor practice case
and had no opportunity to contest the judges’ findings, and the General
Counsel has not established that there were unfair labor practices or a
causal nexus between them and the employee disaffection.
14 Accordingly, we need not pass on the Regional Director’s Master
Slack analysis as that analysis presupposes a finding by the Board that
the employer has committed unfair labor practices.
15 See General Cable Corp., supra; Deluxe Metal Furniture Company,
121 NLRB 995 (1958). As noted above, the Regional Director stated
that the parties “modified, renewed and extended” their agreement as part
of the 2016 settlement. We do not reach or pass on whether the extant
CABLEVISION SYSTEMS CORP. 5
Preventing the employees from expressing their own
wishes concerning continued union representation for
more than four years on the basis of charges settled with-
out any final adjudication of their merits and subsequently
withdrawn would constitute a failure to protect the em-
ployees’ statutory right to choose for themselves whether
to engage in collective bargaining and represent an abdi-
cation by the Board of its responsibilities under the Act. It
would also be inconsistent with the Board’s current block-
ing-charge policy as explicated in Truserv, supra. Accord-
ingly, we shall reinstate the petition and remand this case
to the Regional Director for further appropriate action.
ORDER
The Regional Director’s administrative dismissal of the
petition is reversed, the petition is reinstated, and the case
is remanded to the Regional Director for further actions
consistent with this Decision.
Dated, Washington, D.C. December 19, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
The question presented here should be an easy one to
answer: Consistent with the Board’s statutory duty to
safeguard employee free choice, can the Board safely as-
sume that a decertification petition fairly reflects

contract would be deemed a premature extension for purposes of the
Board’s contract-bar doctrine. See Deluxe Metal Furniture Company,
supra at 1001-1002.
1 See CSC Holdings, LLC and Cablevision Systems New York City
Corp., Cases 02−CA−085811 et al., JD(NY)-47-14 (2014) (Fish JD);
CSC Holdings, LLC and Cablevision Systems, New York City Corp.,
Cases 29−CA−134419 et al., JD(NY)-9-16 (2016) (Green JD); CSC
Holdings, LLC, and Cablevision Systems Corp., Case 29−CA−154544,
JD(NY)-15-16 (2016) (Landow JD 1); Communications Workers Local
1109 (Cablevision Systems), Case 29−CB−134066, JD(NY)-22-16
(2016) (Landow JD 2); CSC Holdings, LLC and Cablevision Systems
New York City Corp., Cases 02−CA−138301 et al., JD(NY)-37-16
(2016) (Landow JD 3). On July 14, 2016, the Board approved the par-
ties’ non-Board settlement of the charges at issue in Fish JD, Green JD,
and Landow JD 1. The Board adopted Landow JD 2 in the absence of
exceptions on July 21, 2016, and affirmed Landow JD 3 in CSC
employees’ uncoerced desires about continued union rep-
resentation, where three administrative law judges, after
conducting hearings, have found that the employer en-
gaged in serious and widespread misconduct in the weeks
and months surrounding the filing of the petition? The
answer should be no. My colleagues say yes, pointing out
that the Employer settled unfair labor practice charges re-
lated to the misconduct without admitting wrongdoing.
But while such a settlement resolves the issue of unfair
labor practice liability, it does not erase the credited evi-
dence of the underlying misconduct or change its likely
impact on employees. That is the crucial question now, in
this representation case. Recognizing as much, the Re-
gional Director decided to dismiss the decertification pe-
tition. Unlike my colleagues, I would affirm that com-
mon-sense decision, instead of arbitrarily treating the Em-
ployer’s conduct as if it never happened.
I.
This case centers on a decertification petition covering
the Employer’s Union-represented Brooklyn employees,
but it also implicates facts that were litigated in related un-
fair labor practice cases in both Brooklyn and the Bronx.
After a combined 54 days of evidentiary hearings, Admin-
istrative Law Judges Stephen Fish, Raymond P. Green,
and Mindy Landow issued five decisions addressing un-
fair labor practice charges filed by the Union (and the Em-
ployer) over events occurring between April 2012 and
June 2015.1 The decertification petition was filed in the
middle of that period, on October 16, 2014.
The scope and scale of the Employer’s alleged and liti-
gated misconduct is striking, and encompassed both re-
peated, serious incidents of retaliation against the Em-
ployer’s unionized workforce in Brooklyn for their union
activities and a steady stream of unlawful actions seeking
to undermine support for the Union among the Employer’s
nearby employees in the Bronx, where the Union was also
organizing.2
Holdings, LLC and Cablevision Systems New York City Corp., 365
NLRB No. 68 (2017).
2 As detailed below, Judges Fish and Landow found that the Em-
ployer violated Sec. 8(a)(3) and (1) numerous times at various Employer
facilities besides the Brooklyn location where the decertification petition
was filed. Contrary to my colleagues’ suggestion, Brooklyn employees
were not somehow oblivious to the Employer’s coercive anti-union cam-
paign in the Bronx and elsewhere. A Bronx supervisor credibly testified
before Judge Fish that as early as 2011 the Employer sought to determine
whether Brooklyn organizing activity was spreading to the Bronx be-
cause it regularly transferred technicians between the two locations,
many technicians from both locations knew each other, and there was “a
close relationship between the Bronx and Brooklyn employees.” Thus,
the Employer’s coercive conduct in the Bronx is clearly relevant to its
Brooklyn employees’ disaffection from the Union, apart from the finding
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
First, in a 271-page decision, Judge Fish found that in
April 2012, shortly after the Union was certified as the
representative of the Employer’s Brooklyn employees, the
Employer began an effort to undermine the Union’s sup-
port among its nearby employees in the Bronx, where the
Union was also organizing. These efforts included: solic-
iting employee complaints, promising and granting im-
proved wages and benefits, and threatening loss of train-
ing, loss of work, reduced benefits, and more onerous
working conditions.
Judge Fish also concluded that the Employer directly
attacked the Union’s support in Brooklyn. Specifically,
the Employer discharged numerous employees because of
their union activity.3 Further, the Employer, also in Janu-
ary 2013, prevented new employees, who were not on
working time or in working areas, from speaking with a
union representative, stating “You can’t do this. These are
my guys, I own them.” He also found that on January 31,
2013—the day after the 22 discharges—the Employer
threatened employees that bargaining would be futile, tell-
ing employees that the Union was “leading the people
down a rabbit hole, where they would not have a way out
because [the] company wasn’t going to give [the Union]
anything at the table, anything different than what they
gave to anybody else, except that we were going to bargain
for it one piece at a time.” And he found that in July and
August 2013, the Employer unilaterally implemented and
then cancelled new-technology training for union-repre-
sented employees it had previously provided to non-unit
employees, effectively communicating to unit employees
that they would have obtained this training but for the Un-
ion.4
Next, Judge Landow found that the Employer trans-
ferred six employees out of its Bronx facility in May 2014
in retaliation for their union activity.5

of the Regional Director that the Employer’s Brooklyn conduct was in-
dependently sufficient to warrant declining to reinstate the petition.
3 Specifically, the judge found that, on January 30, 2013, the Em-
ployer discharged 22 Brooklyn employees who were “on strike or, at
least, engaging in a work stoppage” by advising them that they had been
permanently replaced when they had not, in fact, been replaced. The
judge found that the discharged employees were returned to work over
the next 2 months and recommended a make-whole remedy for their loss
of pay or benefits resulting from their discharge.
4 The judge also concluded that the General Counsel had failed to
prove other complaint allegations, including allegations of surface bar-
gaining in violation of Sec. 8(a)(5).
5 Judge Landow also found that in July 2014 the Union unlawfully
threatened to sue employees in Brooklyn for their activities in soliciting
signatures for the decertification petition. As noted above, the Union did
not contest Judge Landow’s conclusion that it unlawfully threatened to
sue employees or her recommended Order that it cease and desist from
doing so, which the Board subsequently adopted pro forma pursuant to
Sec. 10(c). Notably, however, as of the date of the Union’s unlawful
threat, unit employees had already been subjected to the Employer’s
Judge Green subsequently found that, on July 7, 2014,
the Employer threatened to cause the arrest of an em-
ployee who was playing prounion songs on his car stereo
in the parking lot of the Employer’s headquarters.6 Judge
Green also found that, on September 10, 2014, little more
than a month prior to the filing of the decertification peti-
tion, the Employer coercively polled Brooklyn employees,
asking whether they wanted to continue to be represented
by the Union. The judge found the poll coercive in part
because employees might assume that their votes were
discoverable by the Employer.
II.
In sum, the administrative law judges determined that
the Employer fired 22 Brooklyn workers for supporting
the Union, threatened that bargaining in Brooklyn would
be futile, and coercively polled the Brooklyn employees
about their union support—all while engaging in other
misconduct aimed at the Brooklyn workers and their
Bronx colleagues, with whom they had a close relation-
ship. In this highly-charged context of reprisals against
prounion employees and efforts to undermine the Union,
the decertification petition was filed. Unsurprisingly, the
Regional Director promptly dismissed the petition, con-
cluding that it was not a reliable, untainted indication of
employees’ disaffection from the Union. The Employer
filed a request for review of that dismissal, which the
Board denied.
The Employer and the Union then submitted a joint mo-
tion for approval of a non-Board settlement agreement
providing for the Union’s withdrawal of the unfair labor
practice charges in three of the cases before the adminis-
trative law judges (Fish JD, Green JD, and Landow JD 1),
which the Board ultimately granted (although it did not
vacate the administrative law judges’ decisions).7 The
continuing unremedied coercive conduct—including its discharge of 22
union supporters and its unilateral implementation and cancellation of
employee training—for more than 2 years without a contract, a condition
that would continue through the filing of the petition and beyond. With-
out in any way condoning the Union’s unlawful conduct, I therefore dis-
agree with my colleagues’ suggestion that the Union’s isolated conduct
somehow neutralized the cumulative corrosive effect of the Employer’s
protracted anti-union campaign.
In a separate decision, Judge Landow also found that the Employer
unlawfully discharged an employee from its Jericho (Long Island), New
York facility on June 8, 2015, because of her union activity. Landow JD
1, supra. I do not rely on any implication in the Regional Director’s de-
cision that this discharge, which post-dated the October 16, 2014 peti-
tion, could have contributed to the employee disaffection underlying the
petition.
6 Judge Green dismissed several other complaint allegations that the
Employer had violated Sec. 8(a)(5), (3), and (1), including allegations
involving post-petition conduct.
7 Compare CSC Holdings, LLC and Cablevision Systems Corp.,
Cases 29−CA−097013 et al., 2016 WL 4376614 (unpublished order
CABLEVISION SYSTEMS CORP. 7
Employer did not admit any wrongdoing in the settlement.
But the settlement agreement did not address the dis-
missed decertification petition or limit the use of the evi-
dence from the unfair labor practice cases in the represen-
tation case. As further explained below, there is nothing
unusual about the absence of such a prohibition, given the
distinct inquiries in unfair labor practice proceedings
(Was there a violation of the Act?) and in representation
proceedings (Can a petition or election fairly reflect em-
ployees’ uncoerced wishes concerning union representa-
tion?).8
Following the settlement, the Petitioner requested that
her decertification petition be reinstated, but the Regional
Director denied that request. Fully considering the hear-
ing records developed before Judges Fish, Green, and
Landow, she determined that the Employer’s proven mis-
conduct was causally related to the Union’s loss of sup-
port, tainting the decertification petition and warranting its
final dismissal.
In making that determination, the Regional Director
found (correctly, as I will explain) that she was not re-
quired to reinstate the petition under the Board’s decision
in Truserv Corp., 349 NLRB 227 (2007). In Truserv, the
Board considered whether to dismiss a decertification pe-
tition where unfair labor practice allegations were settled,
without an admission of liability, before they had been lit-
igated (i.e., there was no hearing record, much less an ad-
ministrative law judge’s decision). The Truserv Board
held that a petition filed in those circumstances should be
processed, after the remedial period associated with the
settlement, because the employer conduct is “only alleged
to be unlawful.” Id. Expanding on that point, the Board
concluded that processing the petition was proper because
“[t]here has been no admission by the [e]mployer, finding
by the Board, or evidence presented that the [e]mployer in
fact committed the unfair labor practices alleged.” Id. at
233 (emphasis added). The Regional Director distin-
guished Truserv on the grounds that it “did not address the
situation presented here, where the settlement of the unfair
labor practice charges occurred after multiple administra-
tive law judges found that the employer had committed
numerous egregious and widespread violations of the Act
impacting the bargaining unit.” In short, as the Truserv

issued July 14, 2016) (remanding without vacating), with, e.g., Wingate
of Dutchess, Inc., Cases 03−CA−140576 et al., 2017 WL 3229260 (un-
published order issued July 19, 2017) (remanding and vacating); New
York State Nurses Association, Case 03−CA−027723, 2011 WL
2110300 (unpublished order issued May 26, 2011) (same).
8 Thus, the Board has held that the withdrawal of an unfair labor prac-
tice charge does not waive a party’s right to file election objections based
on the same conduct. Virginia Concrete Corp., 338 NLRB 1182, 1184
(2003). The dismissal of an unfair labor practice charge, similarly, does
not require overruling an election objection concerning the same
Board had put it, there was “evidence presented”—indeed,
a voluminous hearing record of evidence independently
assessed by three administrative law judges—resulting in
factual findings by these adjudicators establishing an
alarming course of misconduct by the Employer that was
highly likely to erode the Union’s support (apart from vi-
olating the Act).
III.
Mistakenly relying on TruServ, and neglecting the im-
portant distinction between litigated findings of miscon-
duct and mere allegations, my colleagues now reverse the
Regional Director and reinstate the decertification peti-
tion. As I will explain, there is no good reason here to
treat employer misconduct (established through litigated
factual findings by three administrative law judges) as if it
never happened, or to treat the settlement of the unfair la-
bor practice cases as if it disposed of the crucial issue in
this separate representation proceeding: whether the de-
certification petition here was tainted. The Board has an
independent duty under the National Labor Relations Act
to protect employee free choice concerning union repre-
sentation. The majority abdicates that duty today.
A.
The Regional Director’s decision must be understood in
its statutory context. Section 9 of the Act requires the
Board to safeguard and effectuate employees’ Section 7
right to choose freely whether to select or reject a collec-
tive-bargaining representative. The Board’s duty under
Section 9 of the Act exists independently of the Board’s
duty under Section 10 of the Act to investigate and adju-
dicate unfair labor practice charges. Accordingly, when-
ever an election petition is filed, the Board must inde-
pendently determine whether, under the circumstances, it
should process the petition. The Board’s rules commit this
inquiry, in the first instance, to the discretion of the Re-
gional Directors.9
The Regional Directors’ discretion, in turn, is guided by
the well-established and court-approved principle of
Board law that no legitimate question concerning repre-
sentation is raised where it may reasonably be concluded
that a union’s apparent loss of majority support has been
caused by the employer’s own misconduct.10 Where there
conduct, because “the effect of preelection conduct on an election is not
tested by the same criteria as conduct alleged by a complaint to violate
the Act.” ADIA Personnel Services, Inc., 322 NLRB 994, 994 fn. 2
(1997) (quoting Texas Meat Packers, Inc., 130 NLRB 279, 280 (1961)).
9 See Board’s Rules & Regulations, Secs. 102.63–102.67.
10 See Master Slack Corp., 271 NLRB 78, 84 (1984); Lee Lumber
Building Material Corp. v. NLRB, 117 F.3d 1454, 1459 (D.C. Cir. 1997)
(quoting Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27,
51 fn.18 (1987)) (Board’s presumption that employer’s refusal to bargain
taints union’s subsequent loss of majority “is both rational and consistent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
is a causal relationship between the employer’s conduct
and the petition, the Board normally dismisses the petition
without directing an election.11
Determining such a causal relationship naturally means
that a Regional Director must have access to all available,
reliable information that might bear on the issue—which
obviously may include the record in an unfair labor prac-
tice proceeding. Of course, had the three judges’ unfair
labor practice findings here culminated in a final decision
by the Board, the Regional Director could properly have
considered the Employer’s conduct and any related unfair
labor practice findings in deciding whether the petition
should be processed. But it simply does not follow that
the absence of final Board action forecloses such consid-
eration. Thus, the fact that a final Board decision consti-
tutes a sufficient evidentiary basis for the resolution of the
representation question12 does not support a corollary
finding that a Board unfair labor practice finding is a nec-
essary requisite for a Regional Director’s dismissal of a
decertification petition.
Accordingly, the Board has acknowledged that a
judge’s factual findings in an unfair labor practice pro-
ceeding may be relied upon by a Regional Director to dis-
miss a resulting decertification petition, even without con-
ducting a separate hearing in the representation proceed-
ing itself.13 In fact, a Regional Director may dismiss a pe-
tition based on conduct that could not even support the is-
suance of an unfair labor practice complaint at all because
of the Section 10(b) 6-month limitations period.14

with the Act. . . . [and] supports employee free choice because it prevents
an employer from ‘pointing to an intervening loss of employee support
for the union when such loss of support is a foreseeable consequence of
the employ[er]’s unfair labor practice.’”), affg. in relevant part 322
NLRB 175 (1996).
11 See Master Slack Corp., above, at 84; NLRB Casehandling Manual
(Part Two) Representation Proceedings (CHM 2) Sec. 11733.2(a)(3).
12 See Saint Gobain Abrasives, Inc., 342 NLRB 434, 434 (2004);
Overnite Transportation Co., 333 NLRB 1392, 1392 (2001).
13 See, e.g., Saint Gobain Abrasives, above, 342 NLRB at 434. My
colleagues misinterpret Saint Gobain when they claim that the Board
there determined that a decertification petitioner must be given an oppor-
tunity to present evidence and appeal any findings to the Board. To the
contrary, while the Saint Gobain Board set aside the regional director’s
dismissal of a petition prior to any evidentiary hearing, it explicitly reaf-
firmed the Board’s line of decisions finding petitions tainted on the basis
of unfair labor practice proceedings. Id. (“The procedure in [Master
Slack, 271 NLRB 78 (1984), and its progeny unfair labor practice cases]
was proper.”). Of course, a decertification petitioner is not entitled to
intervene in an unfair labor practice proceeding, or, absent permissive
intervention, to present evidence or appeal the judge’s findings to the
Board. See Act, Sec. 10(b), 29 U.S.C. §160(b) (providing generally for
intervention in unfair labor practice at Board’s discretion). Cf. Overnite
Transportation Co., above, at 1392 (dismissing decertification petitions
found tainted based on separate unfair labor practice proceedings to
which petitioners were not parties).
Relatedly, as noted above, the Board has held that “the
withdrawal of an unfair labor practice charge does not op-
erate as a waiver of [a] party’s right to file objections
based on the same conduct.”15 The Board still will con-
sider “any substantial evidence” of relevant interference,
whether or not that conduct is the basis of a pending unfair
labor practice charge.16 Even the dismissal of a charge
does not bar consideration of the alleged misconduct in a
related representation proceeding because, as the Board
has explained, the question presented by a charge is fun-
damentally distinct from the question presented by an
election petition.17
So, here, it was perfectly appropriate for the Regional
Director to look to the hearing records created before the
administrative law judges in deciding whether to reinstate
the decertification petition. Indeed, it is hard to imagine
how the Regional Director otherwise could have fulfilled
her duty under Section 9 of the Act to determine the valid-
ity of the petition.
B.
Contrary to the majority, the fact that the parties had
settled the allegations against the Employer before final
action by the Board does not compel a different result. To
be sure, the settlement (absent an admission of wrongdo-
ing) precludes any legal conclusion that the Employer vi-
olated the Act. But that is not the issue here. Rather, as
recognized by the Regional Director, there remains the
separate statutory question whether the Employer’s con-
duct tainted the decertification petition.18 The majority
14 Canter’s Fairfax Restaurant, 309 NLRB 883, 884 (1992). Contrary
to my colleagues, the principle illustrated by Canter’s Fairfax Restau-
rant—that an unfair labor practice finding is not a necessary prerequisite
for dismissal of a tainted petition—does not depend on the specific em-
ployer conduct involved. Thus, the relevance of Canter’s here is not
undermined by the fact that the Board there considered a petition directly
tainted by an employer’s support, rather than, as here, a petition tainted
indirectly by the employer’s coercive conduct aimed at the union and its
employee supporters.
15 Virginia Concrete Corp., 338 NLRB 1182, 1184 (2003).
16 Id. (emphasis added).
17 ADIA Personnel Services, Inc., 322 NLRB 994, 994 fn. 2 (1997)
(quoting Texas Meat Packers, Inc., 130 NLRB 279, 280 (1961)) (the dis-
missal of a charge does not require the pro forma overruling of an elec-
tion objection because “‘the effect of preelection conduct on an election
is not tested by the same criteria as conduct alleged by a complaint to
violate the Act.’”). The majority misses the point in asserting that ADIA
Personnel Services and Virginia Concrete Corp., above, have no bearing
here because they involved election objections (rather than a decertifica-
tion petition) and unfair labor practice charges that were withdrawn or
dismissed (rather than settled). What matters, rather, is that in these
cases, the Board recognized the different concerns at issue in the unfair
labor practice and representation contexts.
18 Contrary to the majority, considering whether the conduct at issue
in the settled cases tainted the petition does not deny due process to the
Employer. Finding that the petition was tainted is not tantamount to a
conclusion that the Employer violated the Act—and would impose no
CABLEVISION SYSTEMS CORP. 9
erroneously ignores this fundamental point in mechani-
cally applying Truserv to reinstate the petition. Indeed,
the majority’s reflex is contrary to Truserv itself, which
recognizes that whether to dismiss a decertification peti-
tion based on alleged, but settled, unfair labor practices
depends on the particular circumstances presented. In the
circumstances here, dismissal is proper.
Truserv concluded that bare allegations of employer vi-
olations—settled before a Regional Director has investi-
gated and issued a complaint—do not warrant dismissing
an otherwise proper petition because, in that posture, there
is “no admission by the Employer, finding by the Board,
or evidence presented that the Employer in fact committed
the unfair labor practices alleged.”19 As the italicized
phrase indicates, the Truserv Board contemplated that
along the continuum of cases there would be yet another
category of cases—beyond bare, unlitigated allegations,
but short of a Board finding—in which reliable “evidence
presented” of employer misconduct may warrant dismiss-
ing a decertification petition. The present case fits com-
fortably within this category of cases and in fact highlights
why this category must exist.
There is no basis for questioning the reliability of the
records made before the administrative law judges. The
“evidence presented” was introduced in extensive admin-
istrative proceedings that were conducted with all the req-
uisite procedural safeguards to ensure the reliability of the
records created. The administrative law judges then made
careful credibility determinations and detailed factual
findings based on those proceedings, at which the parties
had every opportunity and incentive to present evidence
and cross-examine witnesses.20 A party’s conduct has
rarely been more thoroughly litigated. The mere fact that

remedial obligation upon the Employer beyond the terms of its settle-
ment agreement.
19 349 NLRB at 233 (emphasis added). The Board’s decision in Trus-
erv reversed the then-controlling policy articulated in Douglas-Randall,
Inc., 320 NLRB 431, 435 (1995), to return to what Truserv characterized
as the doctrine enunciated in Passavant Health Center, 278 NLRB 483
(1986), and its progeny: Island Spring, 278 NLRB 913 (1986); Nu-
Aimco, Inc., 306 NLRB 978 (1992); and Jefferson Hotel, 309 NLRB 705
(1992). 349 NLRB at 228.
20 The Board delegates its initial fact-finding responsibility in unfair
labor practice cases to administrative law judges and reviews their cred-
ibility resolutions under a deferential standard. See, e.g., United States
Postal Service, 365 NLRB No. 51, slip op. at 1 fn. 1 (2017) (citing Stand-
ard Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951)) (“The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect.”); see also
Adams and Associates, Inc. v. NLRB, 871 F.3d 358, 372 (5th Cir. 2017)
(citations omitted) (“[an] ALJ’s credibility determinations are binding
except in rare instances”). The majority correctly observes that judges’
decisions pending on review by the Board are not binding authority. St.
Vincent Medical Center, 338 NLRB 888, 888 (2003). But while final
the parties later settled the allegations cannot logically af-
fect the reliability of the judges’ fact-finding. Nor does
the Employer’s refusal to admit wrongdoing mean that the
parties agreed that evidence from the unfair labor practice
proceedings could not be considered by the Regional Di-
rector in the representation case.21
In those circumstances, the majority’s refusal to permit
the Regional Director to even evaluate those existing, re-
liable records to inform her decision is simply irrational,
not to mention administratively wasteful.22 Rather, con-
sistent with Section 9, the Board should conclude that the
Regional Director properly looked to those records in ful-
filling her duty to examine the appropriateness of proceed-
ing with an election.
IV.
The gravity of the majority’s error is even clearer when
one actually considers the scale and scope of the Em-
ployer’s misconduct in this case, ranging from a mass dis-
charge to a threat of arrest to a coercive poll. Even a cur-
sory review demonstrates that there can be little, if any,
dispute that the Regional Director correctly concluded that
the misconduct warrants dismissing the petition.
The Board has identified several relevant factors in de-
termining whether there is a causal relationship between
an employer’s coercive conduct and employee disaffec-
tion from a union leading to a decertification petition.
These factors include: (1) the length of time between the
coercive conduct and the petition; (2) the nature of the
conduct, including the possibility of detrimental or lasting
effect on employees; (3) any possible tendency to cause
employee disaffection from the union; and (4) the effect
of the conduct on employee morale, organizational activi-
ties, and membership in the union.23 Applying these
Board action would be necessary to establish that the Employer had vio-
lated the Act, as discussed above, the administrative law judges’ conclu-
sions of law are not necessary predicates for resolving the representation
question before us. I do not rely upon any contrary implication in the
Regional Director’s decision.
21 Such a finding would unfairly and unwisely discourage unions from
settling unfair labor practice cases voluntarily. In order to win relief for
represented employees who were targeted by the employer, unions
would be required to risk their representative status, based on an erosion
of majority support likely caused by the same employer conduct.
22 Certainly, the Regional Director could have exercised her discretion
under Sec. 9(c) of the Act to conduct a separate hearing to determine the
validity of the petitioner’s showing of interest (see Saint Gobain Abra-
sives, above), but further hearings in this case could add little to the de-
tailed map of relevant factual findings already charted by the administra-
tive law judges.
23 See Williams Enterprises, 312 NLRB 937, 939 (1993), enfd. 50
F.3d 1280 (4th Cir. 1995); Master Slack, supra, 271 NLRB at 84. See
also Overnite Transportation Co., above, 333 NLRB at 1397 fn. 22 (“Ex-
cept for the fourth factor, [this] analysis weighs the objective tendency
of the unfair labor practices to undermine union support, and evidence of
the actual impact of the [e]mployer’s unfair labor practices is not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
factors, I agree with the Regional Director that the timing,
nature, tendencies, and effects of the Employer’s conduct
found by Judges Fish and Green demonstrate a causal re-
lationship between the conduct and the present decertifi-
cation petition.24
Employees faced with the decision to support or oppose
decertification had been subjected to almost 2 years of
continuing, serious, unremedied coercive conduct begin-
ning with the Employer’s discharge of 22 union supporters
and culminating in its arrest threat and coercive polling of
employees in the months immediately preceding the filing
of the decertification petition. The Board has found that
discharges of union supporters in particular tend to have a
lasting detrimental effect on employees’ support for a un-
ion.25 The Employer’s later conduct would only tend to
reinforce the coercive effect of those discharges.26
The Board has also found that an employer effectively
undermines a union by conduct like the Employer’s attrib-
uting its decision to revoke training opportunities to the
Union.27 In addition, the statements found unlawful by
Judge Fish, and the arrest threat found unlawful by Judge
Green, would also reasonably tend to interfere with em-
ployees’ organizational activities and undermine their
support for the Union—as the Employer clearly intended.
Further, I agree with Judge Green that the Employer’s
polling tended to erode support for the Union both by sug-
gesting to employees that the Employer would find out
how they had voted, and by undermining the Union’s

required”). Here, as discussed below, the Union’s loss of support be-
tween the 2012 Board election and the Employer’s 2014 poll evidences
the actual impact of the Employer’s conduct.
24 Because the analysis is an objective one, and the Employer’s con-
duct and the Union’s loss of support are objectively established, the in-
quiry does not require asking employees why they stopped supporting
the Union. See Saint Gobain Abrasives, above at 434 and fn. 2 (“The
Master Slack test is an objective one . . . [t]he relevant inquiry at the
hearing does not ask employees why they chose to reject the Union.”).
As to the Employer’s argument that the dismissal was erroneous be-
cause the Petitioner did not have an opportunity to proceed to a hearing
on the petition, the Petitioner waived and forfeited any argument that
such a hearing is necessary by failing to seek review of the Regional Di-
rector’s decision. Only the Employer sought review here. Accordingly,
had the parties not settled the unfair labor practice cases, it is unlikely
that the Petitioner could have successfully challenged the petition’s dis-
missal. See Case Handling Manual 2 Sec. 11733.2(b) (“A petition is
subject to reinstatement only if the allegations in the unfair labor practice
case, which caused the petition to be dismissed, are ultimately found to
be without merit”). Moreover, the majority’s assertion that affirming the
Regional Director’s decision here would be “especially harsh” for the
Petitioner because the Petitioner did not have an opportunity to challenge
the ALJ’s factual findings similarly misses the mark. The majority’s
criticism is not unique to the circumstances of this case, but instead
would apply any time a decertification petitioner has not been given an
opportunity to participate in an unfair labor practice proceeding where
the alleged violations could potentially taint her petition. Yet, it is well-
established Board law, that an unfair labor practice decision—or the set-
tlement of an unfair labor practice case (at least where liability is
ongoing bargaining for a first contract—at that time al-
most 2 years after certification.
Finally, I agree with the Regional Director about the im-
pact of the coercive employee poll—which Judge Green
found could have caused employees to fear that their indi-
vidual votes would become known to the employer—con-
ducted shortly before the decertification petition was filed.
The dramatic erosion of employee support for the Union
between the 2012 Board election, which the Union won
by a 180 to 86 margin, and the 2014 poll, which it lost 115
to 129, strongly supports the inference that the Employer’s
intervening coercive conduct contributed substantially to
the filing of and support for the decertification petition.
For all of those reasons, I agree with the Regional Di-
rector that there was a causal relationship between the Em-
ployer’s conduct and employee disaffection from the Un-
ion that fatally tainted the decertification petition. Conse-
quently, the petition must be dismissed.
V.
The Board has a statutory duty to determine whether an
election petition—any election petition—actually pre-
sents a legitimate question concerning representation. The
notion that the Board’s full inquiry into that question may
be frustrated by the parties’ non-Board settlement of rele-
vant alleged unfair labor practices defies both the statute
and common sense. This is particularly true where, as
here, there has been reliable “evidence presented” that the
admitted by the respondent employer)—can result in the dismissal of a
decertification petition, regardless of whether the petitioner was a party
to the unfair labor practice proceeding. This is because, as explained,
Sec. 10(b) of the Act makes intervention in such a proceeding discretion-
ary with the Board, and decertification petitioners are typically not per-
mitted to intervene in an unfair labor practice proceeding where their in-
terests would essentially be identical to those of the employer. See, e.g.,
Veritas Health Services, Inc., 363 NLRB No. 108, slip op. at 1 (2016),
enfd. in relevant part 895 F.3d 69 (D.C. Cir. 2018); Latino Express, 360
NLRB 911, 911 fn. 2 (2014). Here, of course, the Petitioner did not even
seek to intervene in any of the relevant unfair labor practice proceedings
(or seek review of the Regional Director’s dismissal of the petition in this
representation proceeding).
25 See, e.g., Vincent Industrial Plastics, Inc., 328 NLRB 300, 302
(1999) (unlawful discipline and discharge of key union supporters is
“likely to have a long lasting effect on the bargaining unit and to discour-
age employees from supporting the union”), enfd. in relevant part, 209
F.3d 727, 737−738 (D.C. Cir. 2000).
26 Cf. Williams Enterprises, Inc., above, 312 NLRB at 939−940 (find-
ing decertification petition unreliable where intervening conduct (though
lawful) “served to remind many employees” of single coercive statement
made four months before petition).
27 See Grouse Mountain Lodge, 333 NLRB 1322, 1323−1324 (2001)
(respondent employer’s attributing its delay in implementing new bene-
fits to the union “had the effect of undermining the Union by creating the
impression that but for the ongoing campaign, the Respondent would
have implemented the benefits”), enfd. mem. 56 Fed. Appx. 811 (9th Cir.
2003).
CABLEVISION SYSTEMS CORP. 11
Employer in fact engaged in conduct that, even if it cannot
be the basis for unfair-labor-practice liability, clearly con-
tributed to the filing of the decertification petition. Instead
of coming to grips with this reality, the majority treats the
settlement, and the Employer’s refusal to admit liability,
as wiping the slate clean for purposes of this representa-
tion case. In short, “nothing to see here” seems to be the
majority’s answer. But that simply cannot be right in light
of the Board’s duty under Section 9 to protect employee
free choice from employer coercion.
Dated, Washington, D.C. December 19, 2018
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD