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Franklinton Preparatory Academy and Franklinton Preparatory Academy Educators Association

United States District Court, S.D. Georgia, Savannah Division

April 20, 2018

Franklinton Preparatory Academy
v.
Franklinton Preparatory Academy Educators Association, Petitioner.

          Members Pearce, McFerran, and Kaplan.

          DECISION AND DIRECTION

         The National Labor Relations Board, by a three-member panel, has considered determinative challenges and objections to an election held March 5, 2015, and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 5 for and 4 against the Petitioner, with 1 void ballot and 3 challenged ballots, a sufficient number to affect the results.

         The Board has reviewed the record in light of the exceptions and briefs and has adopted the hearing officer's findings[1] and recommendations, only to the extent consistent with this Decision and Direction.

         We agree with the hearing officer's recommendation to overrule the challenge to the ballot of Anne Hyland.[2]In addition, for the reasons that follow, we agree with the hearing officer's recommendation to sustain Petitioner's Objection 3, alleging that the Employer threatened employees against exercising their rights protected by Section 7 of the Act.[3]

         On February 28, 2015, just a few days before the election, Chief Operating Officer Marty Griffith sent an email to employee Julie Pfeifer. Through a series of rhetorical questions, Griffith detailed to Pfeifer numerous favorable employment conditions, such as pay increases, personal development days, and hiring and training flexibilities. After doing so, Griffith asked Pfeifer to consider several “facts, ” including the following:

If FPA is unionized, I suspect that FPA's Board will take a very hard line on the pay, benefits, working conditions, PD [professional development] days and other things that I've worked so hard to bring to FPA. And please remember that I work for the Board. As much as some may hope, it is unrealistic to believe that the Board will welcome unionization at FPA.

         Prior to the election, Pfeifer shared the details of Griffith's email with three other employees in the petitioned-for unit.

         In evaluating party conduct during the critical period, the Board applies an objective standard under which conduct is found to be objectionable if it reasonably tends to interfere with employee free choice. Cedars-Sinai Medical Center, 342 NLRB 596, 597 (2004), citing Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995). In determining whether election misconduct warrants setting aside the election result, the Board considers (1) the number of incidents of misconduct; (2) the severity of the incidents and whether they were likely to cause fear among employees in the bargaining unit; (3) the number of employees in the bargaining unit subjected to the misconduct; (4) the proximity of the misconduct to the election date; (5) the degree of persistence of the misconduct in the minds of the bargaining unit employees; (6) the extent of dissemination of the misconduct among bargaining unit employees; (7) the effect, if any, of the misconduct by the opposing party to cancel out the effect of the original misconduct; (8) the closeness of the final vote; and (9) the degree to which the misconduct can be attributed to the party. Id.

         We find that employees would reasonably understand Griffith's statements above to threaten them with the loss of existing benefits and terms and conditions of employment if they voted for union representation. After reminding Pfiefer about favorable working conditions and benefits, Griffith shared his belief that if the employees voted for unionization, the board “will take a very hard line” on these terms and benefits. In addition, Griffith emphasized that, although he had brought many of those benefits to employees, he was subservient to the board, warning Pfeifer that “it is unrealistic to believe that the [b]oard will welcome unionization[.]” Moreover, these “facts” conveyed by Griffith lacked any objective basis and did not predict demonstrably probable consequences beyond the Employer's control. See generally NLRB v. Gissel Packing Co., 395 U.S. 575, 618-619 (1969). Griffith offered no evidence that unionization would lead to significant new costs for the Employer that would necessitate reductions in existing benefits. Nor did his remarks explain how a change in existing benefits and working conditions could result from the give-and-take of future collective bargaining. Instead, Griffith's remarks clearly suggested that employees, by entertaining the prospect of union representation, were courting the wrath of the Employer's board. As a result, Griffith's statements went well beyond merely advising employees of the potential consequences of good-faith collective bargaining and instead constituted statements threatening the loss of existing benefits and terms and conditions of employment.[4]

         In addition, given the circumstances surrounding Griffith's threatening statements we find that they would reasonably tend to interfere with employee free choice in the election. Griffith was the highest ranking member of management at the school and an individual whom the employees understood worked closely with the board. Griffith made the statements just days before the election, and the statements were made and disseminated to approximately one-third of the employees in the peti-tioned-for unit. Moreover, the statements were made in the context of a very close election, where one vote could change its outcome. In these circumstances, we find that Griffith's statements warrant setting aside the election if the revised tally of ballots shows employees voted against representation.

         DIRECTION

         It is directed that the Regional Director for Region 9 shall, within 14 days from the date of this Decision and Direction, open and count the ballot of Anne Hyland. The Regional Director shall then prepare and cause to be served on the parties a revised tally of ballots.

         It is further directed that if the revised tally of ballots shows that the Petitioner has received a majority of the valid ballots cast, the Regional Director shall issue a certification of representative. If, however, the revised tally shows that the Petitioner has not received a majority of the ballots cast, the Regional Director shall set aside the election and conduct ...


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