Hackensack Inc. and the Union Representation Election Case In early 2019, the Union (United Steel, Rubber, Energy, Allied Industrial and Service Workers International Union) began organizing the Hackensack, Inc. plant in Ocala, Florida. On May 18, the parties entered into a Stipulated Election Agreement, which set a vote in this bargaining unit (the unit): "All ... production, maintenance, shipping and receiving, and quality control employees, ... employed at the plant, excluding all office clerical employees and guards, professional employees and supervisors as defined by the Act. A vote was held on June 1, which the Union lost by a 113 to 83 margin. The union alleged that Hackensack committed 3 unfair labor practices (ULPs) before the election; the Union charged in its objections that two of the ULPs caused its election defeat. ULP Charge #1 Electrician Brian Schultz testified that, on May 11, he placed pro-Union flyers and a union pin in his tool cabinet. He said that 4 coworkers (i.e., Jason Kole, Joe Hennus, Willie Wingo and Mike Mitchell) also placed pro-Union flyers in their tool cabinets. He stated, David Bohannon, his then supervisor, removed and discarded these flyers. He said that Bohannon handed the pin back to him, and said pins can only be worn, they cant be stored in company property." He insisted that Hackensack never previously limited what was stored in tool cabinets. He said that, shortly thereafter, Bohannon passed out anti-Union flyers to himself, Kole, Hennus, Wingo and Mitchell, and directed them to educate themselves about unions. Schultz recollected the others placing these anti-Union flyers in their tool cabinets in Bohannon's presence, without any objections from Bohannon. Schultz noted that, when employees received anti-Union flyers at company meetings, their flyers were often placed in their tool cabinets, without objection from any supervisors. Employee Corey Thomas testified that, in mid-May, he observed Bohannon removing and discarding pro-union flyers and pins from employees tool cabinets. He said that Bohannon told him that flyers "are not to be displayed, and pins could only be worn. Thomas corroborated that he was unaware of any rule at that time, which supported Bohannon's actions. Employee Jason Sees corroborated Schultz's and Thomas's accounts. He said that, when he asked Bohannon why it was okay for him to pass out anti-Union flyers after contrarily discarding proUnion flyers, Bohannon retorted that it was okay because the company was paying their salaries. Hackensack's Position Regarding Flyers Supervisor Baker testified that, in the interest of workplace safety, the plant must be kept free of debris. He said that standard housekeeping principles apply, and that employees possessing flyers at work is solicitation, which is covered by the companys solicitation policy: Solicitation by employees on company property is prohibited when the person soliciting or the person being solicited is on working time .... Distribution of non-work-related literature by employees on company property in nonworking areas during working time is prohibited. Distribution of non-work-related literature by employees on company property in working areas is prohibited. Baker said that he would permit photos taped to tool cabinets, wallets, phones or similar items that could not be blown away and become litter. He added that the plant gets breezy, when doors are left open for ventilation in the spring and summer. Hackensack did not rebut Bohannon's confiscation of pro-Union flyers, his distribution of antiUnion flyers during working time, or the open storage of anti-Union flyers in tool cabinets. ULP Charge #2 Former employee David Wise testified that, on May 20, HR Manager Judy Ross stopped him on the plant floor, told him that Supervisor Bohannon said that he was a good worker, and she asked him what he thought about the Union. Wise replied that he was still gathering information. He recalled her then stating that, in reference to the election, "we are counting on you." Manager Ross generally recalled talking to Wise about the election and contended that she only asked him how he was faring with the "craziness of the campaign." She recalled generally telling employees that the company was counting on them to vote, and expressing their opinion matters, voting is a privilege and other words to that effect. She denied asking Wise how he felt about the Union and insisted that she knew better. She did agree, during cross examination, that her question about the campaign craziness was vague, and could have coaxed the revelation of employees opinions about the union and union activities. She agreed that she had many conversations before the election, and that it was hard to recall each discussion. Given that Wise said that Ross asked him whether he supported the Union and told him that Hackensack was counting on him during the election, and Ross denied such commentary, a credibility resolution must be made. For several reasons, Wise has been credited. He was a straightforward and consistent witness, with a strong recollection. He had a good overall demeanor and was consistently cooperative. Ross, however, had a poor recollection of their exchange. The Administrative Law Judge (ALJ) found it plausible that, after approaching dozens of workers about the election, Ross simply chose the specific words that she stated to Wise in-artfully and made the alleged comments. In sum, the ALJ concluded that, on May 20, Ross asked Wise what he thought about the Union, and said that, "we are counting on you," in reference to voting against the union in the election. ULP Charge #3 On May 22, Schultz, Thomas and about 15 coworkers attended a 1-hour meeting in the plant's training room. Production Manager Jim Moser and Labor Consultant Charles Stephenson presented Hackensack's stance on the Union and election. Thomas recalled the May 22 meeting and testified that Stephenson told employees that they did not need a Union. He also asked the employees what our concerns were, said that he would then take those concerns back to management, and pledged that "management would fix any issue addressing our concerns." Schultz corroborated Thomass account. Stephenson testified that he made individual and small group presentations to workers before the election. He explained that he used PowerPoint slides and recited selected provisions from the Basic Guide to the National Labor Relations Act (the NLRA Guide), which he found on the NLRB's website. He denied asking employees to state their concerns or promising to bring their problems to managers for resolution. He initially insisted that he read his slides verbatim, but then reluctantly agreed that he might have elaborated his presentation on some slides. He denied, the goal of his meetings was to help the company win the election and claimed that his only goal was to neutrally and impartially educate workers. Moser stated that he was present during Stephenson's meetings; he also alleged that the meetings were designed to educate employees and not sway them. The ALJ found Stephenson to be a slick and deceitful witness. His contention that his sole goal was to kindly educate workers as a neutral was preposterous, given that Hackensack paid him to present its lawful stance against unionization. His claim that he was an impartial educator was also contradicted by his slides, which clearly advocated against unionization. The ALJ found that his neutral educator defense was unbelievable and eviscerated his credibility. The ALJ also found Moser's comparable claims to be equally unappealing. The ALJ found Schutt and Thomas, however, to be persuasive and believable witnesses with strong demeanors. As current employees, they courageously and diplomatically presented difficult facts to the detriment of their employer in the presence of high-level company officials at the hearing; such candor enhanced their credibility. Therefore, the ALJ found that, on May 22, Stephenson told employees that they did not need a Union, asked them what their concerns were, and said that he would bring their concerns back to management for resolution.

Question:

What should the NLRB decide?