RHCG Safety Corp.

National Labor Relations Board - Board Decisions

Jun 7, 2017

365 NLRB No. 88 (N.L.R.B. 2017)

365 NLRB No. 88
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.
RHCG Safety Corp. and Construction & General
Building Laborers, Local 79, LIUNA. Cases 29–
CA–161261 and 29–RC–157827
June 7, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On May 18, 2016, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and Charging Party Union filed answer-
ing briefs, and the Respondent filed reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions, and to adopt the recommended
Order as modified and set forth in full below.2
In this consolidated unfair labor practice and represen-
tation case the judge found that the Respondent violated
the Act by unlawfully interrogating and discharging em-
ployee Claudio Anderson, and interfered with the repre-
sentation election by providing a voter list that failed to
substantially comply with the Board’s voter-list require-
ments. We agree with these findings, as further dis-
cussed below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), J. Picini Flooring, 356 NLRB 11 (2010), and the Board’s
standard remedial language. In accordance with our decision in King
Soopers, Inc., 364 NLRB No. 93 (2016), we shall also order the Re-
spondent to compensate employee Claudio Anderson for his search-for-
work and interim employment expenses regardless of whether those
expenses exceed interim earnings. Search-for-work and interim em-
ployment expenses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). We shall substitute a new notice
to conform to the Order as modified.
3 There are no exceptions to the judge’s dismissal of the allegations
that the Respondent violated Sec. 8(a)(1) by threatening employees
with job loss and reduced wages if they selected the Union as their
bargaining representative or to the judge’s conclusion that he need not
consider the Union’s other election objections in light of his sustaining
the voter list objection.
1. The interrogation
Under the totality of the circumstances test, we agree
with the judge that Supervisor David Scherrer unlawfully
interrogated Anderson when texting him on July 30,
2015, “U working for Redhook or u working in the un-
ion?” See, e.g., Rossmore House, 269 NLRB 1176,
1177–1178 & fn. 20 (1984), affd. sub nom. Hotel & Res-
taurant Employees Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985); NLRB v. McCullough Environmental
Services, 5 F.3d 923, 928 (5th Cir. 1993). Anderson tes-
tified that he never told Scherrer or any other supervisor
that he had signed a union card, visited the union office,
or supported the Union, and the Respondent concedes
that Anderson was not an open union supporter at the
time of the interrogation. See Davies Medical Center,
303 NLRB 195, 205 (1991) (employee questioned not an
open supporter), enfd. 991 F.2d 803 (9th Cir. 1993) (un-
published). Further, Scherrer sent the text in direct re-
sponse to Anderson’s inquiry about whether he could
return to work. By juxtaposing working for Redhook
with working in the Union, Scherrer’s text strongly sug-
gested that the two were incompatible.4 Cf. Facchina
Construction Co., 343 NLRB 886, 886 (2004) (question-
ing an applicant about his union sentiments or activity
tends to be coercive because it suggests that employment
is conditioned on the answer), enfd. 180 Fed.Appx. 178
(D.C. Cir. 2006) (unpublished); Boydston Electric, Inc.,
331 NLRB 1450, 1450 fn. 5 (2000) NLRB v. Shelby Me-
morial Hospital Assn., 1 F.3d 550, 559–560 (7th Cir.
1993) (given employee’s recent return from layoff, it is
doubtful that employee believed that he could take su-
pervisor at his word when supervisor prefaced question-
ing the employee about union activity and his possible
involvement in it, by stating that the employee could tell
him that it was none of his business). Next, while Su-
pervisor Scherrer was not one of the Respondent’s high-
est ranking officials, he did have the power to put Ander-
son to work on his jobsites. Further, contrary to the Re-
spondent’s claims that Scherrer was merely inquiring
whether Anderson was available for work, that was not
what Scherrer asked.5 Scherrer also did not have or

4 We reject the Respondent’s contention that a text message cannot
be found to constitute an unlawful interrogation. The Board has found,
with court approval, that an unlawful interrogation need not be face-to-
face. See, e.g., McGlaughlin v. NLRB, 652 F.2d 673, 674 (6th Cir.
1981) (coercive interrogation occurred via a phone call); NLRB v. Big-
horn Beverage, 614 F.2d 1238, 1240–1242 (9th Cir 1980) (coercive
interrogation occurred via a written job application form). The Re-
spondent offers no reason why the Board should provide a safe harbor
for coercive employer interrogations via text messages.
5 In rejecting the Respondent’s claim that Scherrer merely wanted to
make sure that Anderson was available for work, we further note that
the Respondent does not claim that it had a rule prohibiting outside
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
communicate to Anderson any legitimate purpose for
asking if he was working in the Union. See, e.g., Win-
demuller Electric, Inc., 306 NLRB 664, 673 (1992) (no
legitimate reason for question and none conveyed to em-
ployee), enfd. 34 F.3d 384 (6th Cir. 1994). Nor did
Scherrer provide Anderson with any assurances against
reprisals. NLRB v. Brookwood Furniture, 701 F.2d 452,
462 (5th Cir. 1983) (no evidence that employer had a
valid purpose for question and none conveyed, and no
assurances against reprisals).
We reject the Respondent’s contention that the judge
should not have received into evidence the screenshot of
the text constituting the interrogation (and certain other
texts that Anderson and Supervisor Scherrer exchanged),
because the General Counsel did not move into evidence
screenshots of 10 additional text messages that Anderson
and Scherrer exchanged between July 29 and August 4.
The Respondent points to nothing in the Federal Rules of
Evidence that required the judge to reject the screenshots
of the text messages that Anderson did take simply be-
cause the General Counsel did not move into evidence
screenshots of all the text messages that Anderson and
Supervisor Scherrer exchanged. Nor, contrary to the
Respondent, do the “missing” text messages make it im-
possible for the Board to determine the legality of the
interrogation.
Rule 106 of the Federal Rules of Evidence provides,
“If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction,
at that time, of any other part—or any other writing or
recorded statement—that in fairness ought to be consid-
ered at the same time.” The Rule “is concerned with
misleading impressions created by taking statements in
documents or recordings out of context.” 1 Weinstein’s
Federal Evidence § 106.02[1] ( 2d ed. 2013). However,
the admitted screenshot of the text constituting the un-
lawful interrogation is not incomplete. Accordingly,
there is no “part” of the “statement” that the General
Counsel failed to move into evidence.
Although the Rule also provides for the admission of
related writings that in fairness ought to be considered,
the General Counsel could not have moved screenshots
of those other messages into evidence. None of the other
messages that Scherrer and Anderson exchanged were on
the phones that Anderson and Scherrer had at time of the
unfair labor practice hearing; neither individual had
screenshots of those messages; and the cell phone pro-

employment, and Anderson specifically asked to return to work before
Scherrer’s text interrogation. Further, Scherrer’s purported concern
about Anderson’s availability is at odds with the Respondent’s claim
elsewhere in its exceptions brief that Scherrer had no work for Ander-
son at that time.
viders did not have copies of the actual content of those
texts. See United States v. Thompson, 501 Fed.Appx.
347, 364 (6th Cir. 2012) (unpublished) (rejecting defend-
ant’s rule of completeness argument “because the gov-
ernment admitted 100% of what they were in possession
of”).
Moreover, Anderson’s failure to take screenshots of all
of the text messages he exchanged with Scherrer did not
prevent the Respondent from questioning Scherrer about
his communications with Anderson during the relevant
time period, and about the circumstances surrounding
those communications, when Scherrer testified at the
unfair labor practice hearing. See United States v. Harry,
927 F.Supp. 2d 1185, 1192, 1227 (D.N.M. 2013) (alt-
hough Rule 106 might have allowed defendant to intro-
duce other individual’s text messages to him had they not
been lost, he is not without a remedy because he can tes-
tify about the missing texts), affd. 816 F.3d 1268 (10th
Cir. 2016). In fact the Respondent asserts in its reply
brief to the General Counsel’s answering brief that
“Scherrer explained the content of his communications
with Anderson between July 29 and August 4, which he
thought were face-to-face rather than text messages . . . .”
In any event, the “missing” text messages could not
have rendered lawful the coercive nature of the interroga-
tion given (a) the Respondent’s explicit concession that
Anderson was not an open union supporter at the time of
the interrogation; (b) the Respondent’s implicit conces-
sions that Scherrer did not provide any assurances
against reprisals or explain the purpose of the question;
and (c) the fact that the cell phone provider records con-
firm that Scherrer did not send any additional text mes-
sages to Anderson the night of the interrogation. 6
We recognize, as the Respondent notes, that the record
does not indicate whether Anderson replied truthfully to
Scherrer’s question, because Anderson did not take
screen shots of the messages he sent to Scherrer later that
night after Scherrer’s interrogation text. However, even
if Anderson had freely admitted union involvement in
response to Scherrer’s interrogation, it would not have

6 For example, given the Respondent’s concession that Anderson
was not an open union supporter at the time of the interrogation, it is
clear that none of the missing text messages that were exchanged be-
fore the interrogation would have revealed Anderson’s support for the
Union. Moreover, there are no missing text messages from Scherrer on
the night of the interrogation to put the interrogation into further con-
text. Thus, although the Respondent’s Exceptions Brief indicates that
the record does not reflect the content of text messages sent at 11:04
and 11:06 p.m. on July 30, the cell phone records demonstrate that
those text messages were sent by Anderson to Scherrer. We note in this
regard that the judge inadvertently found that Scherrer texted Anderson
“U got to tell me what’s going on” on July 30 at 11:04 p.m. when in
fact that text was sent on a different date.
RHCG SAFETY CORP. 3
rendered the interrogation lawful. See NLRB v.
McCullough Environmental Services, 5 F.3d 923, 928
(5th Cir. 1993) (If an interrogation is coercive in nature,
it makes no difference that the employee is not actually
coerced.). See also A&A Ornamental Iron, Inc., 259
NLRB 1019, 1020–1021 (1982) (interrogation unlawful
notwithstanding that individual truthfully responded,
admitting union membership.)
2. The discharge
Applying Wright Line,7 we find that the Respondent
unlawfully discharged Anderson. As an initial matter,
we agree with the judge that Anderson could reasonably
conclude that the Respondent had discharged him, even
though no one explicitly told him that he was discharged.
See Poly-America, Inc. v. NLRB, 260 F.3d 465, 477 (5th
Cir. 2001) (the Board may find employees have been
discharged even when there is no evidence that the word
“fired” has been used). Scherrer repeatedly rebuffed
Anderson’s efforts to return to work, and, when Ander-
son asked Nick Rodriguez why he (Anderson) could not
return to work, Rodriguez told him that Garofalo (a vice
president of operations) had said that Anderson (and
some other guys) could not work for the Respondent
anymore. Cf. Champ Corp., 291 NLRB 803, 804 (1988)
(employees could reasonably conclude that they had been
discharged where union conveyed to them their employ-
er’s clear and unambiguous position that they would
never be rehired or reinstated under any circumstances),
enfd. in pertinent part 933 F.2d 688, 693–694 (9th Cir.
1990).
Although the Respondent faults Anderson for failing to
follow Scherrer’s instructions that he contact Supervisor
Pavon for work, the judge credited Anderson’s testimony
that Scherrer instructed him to contact Rodriguez, not
Pavon. The judge thereby implicitly discredited Scher-
rer’s contrary testimony. We find no basis for reversing
the judge’s credibility determinations. We note in this
regard that Scherrer’s testimony about instructing Ander-
son to contact Pavon was equivocal, and Scherrer’s
memory was shown to be imperfect because he could not
specifically recall texting Anderson even though records
from his cell phone provider show that he did.
We also reject the Respondent’s additional contention
that the judge erred in implicitly finding Rodriguez to be
its agent, and therefore erred in attributing Rodriguez’
statement (to Anderson) to the Respondent. See Metco
Products v. NLRB, 884 F.2d 156, 159 (4th Cir. 1989)
(An individual has apparent authority to bind the princi-
pal “if a third person could reasonably interpret acts or

7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
omissions of the principal as indicating that the agent has
authority to act on behalf of the principal.”) The record
shows that Rodriguez drove a company vehicle, and that
the Respondent used Rodriguez to relay information to
both Spanish speaking and non-Spanish speaking em-
ployees, to translate for it, and to communicate separa-
tion notices to employees. See Facchina Construction
Co., 343 NLRB at 886–887 (foreman found to be agent
where management regularly communicated with its em-
ployees through its foremen), enfd. 180 Fed.Appx. 178
(D.C. Cir. 2006) (unpublished); Poly-America, Inc. v.
NLRB, 260 F.3d at 481 (relying in part on junior fore-
man’s serving as a conduit for communications between
the Spanish-speaking work force and the English-
speaking management). Moreover, Rodriguez made the
statement in question to Anderson after Supervisor
Scherrer specifically instructed Anderson to speak with
Rodriguez about his request to return to work. See Da-
vies Medical Center, 303 NLRB 195, 206 (1991) (find-
ing individual’s remarks to an employee attributable to
respondent where uncontroverted supervisor specifically
instructed employee to contact that individual), enfd. in
pertinent part 991 F.2d 803 (9th Cir. 1993). In these cir-
cumstances, we find no merit to the Respondent’s con-
tention that Anderson would not reasonably conclude
that Rodriguez was speaking for the Respondent.
Having concluded that the Respondent did in fact dis-
charge Anderson, we now turn to the legality of the dis-
charge. We find, in agreement with the judge, that the
Respondent discharged Anderson because it believed he
was becoming involved with the Union. There is no dis-
pute that Anderson engaged in union activity; he signed a
union card in June,8 and in mid to late July he visited the
union offices (in the presence of other respondent em-
ployees). Further, Supervisor Scherrer’s unlawful inter-
rogation of Anderson —“U working for Redhook or u
working in the union?”—constitutes evidence that the
Respondent suspected Anderson of union involvement
and harbored antiunion animus. See, e.g., NLRB v. In-
dustrial Erectors, Inc., 712 F.2d 1131, 1137 (7th Cir.
1983). The timing of the discharge in connection with
the unlawful interrogation (and Anderson’s union activi-
ty) buttresses a finding of unlawful motivation. See Her-
itage Hall, E.P.I. Corp., 333 NLRB 458, 461 (2001)
(timing of discharge supports finding of unlawful motive
because it occurred day after unlawful interrogation);
S&M Grocers, Inc., 236 NLRB 1594, 1595 (1978) (dis-
charge unlawful where it followed shortly after interroga-

8 The judge mistakenly found that Anderson signed his union card
when he visited the union offices in mid to late July, and that the Union
commenced its organizing efforts in August 2015.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
tion); Matson Terminals, Inc., v. NLRB, 114 F.3d 300,
303 (D.C. Cir. 1997) (the proximity between union activ-
ity and employer’s action by itself is substantial circum-
stantial evidence of unlawful motivation).
The Respondent’s inconsistent employment practices
further support a finding of unlawful motivation. The
Respondent regularly returned employees to work after
employees took time off for vacations and other reasons,
including even the need to serve jail time. And in its
Exceptions Brief, the Respondent contends that it tries to
limit employee turnover. Yet, when Anderson no longer
needed the approved leave he had just obtained and
sought to return to work, the Respondent never put him
back to work despite Scherrer’s admission that he had
never disciplined Anderson and the undisputed fact that
the Respondent proceeded to hire numerous employees
in both the concrete and demolition divisions, including
more than 20 concrete division employees in August and
about 11 employees in the demolition division between
July 26 and August 30, 2015.
Accordingly, we find, in agreement with the judge,
that the Respondent discharged Anderson because it be-
lieved he was becoming involved with the Union. As the
Respondent offers no legitimate reason for discharging
Anderson, the Respondent has plainly failed to show that
it would have discharged Anderson even absent his union
activity.
Our dissenting colleague argues that Anderson volun-
tarily quit his job, which precludes a finding that he was
discharged. However, this argument does not square
with Anderson’s testimony, corroborated by Supervisor
Scherrer, that Anderson asked for, and was granted, time
off, and that Anderson contacted Scherrer for work when
he no longer needed the leave that he had just recently
obtained. Put simply, Anderson’s decision to take an
approved leave in no way establishes that he intended to
permanently sever his employment relationship with the
Respondent, notwithstanding that there was no guarantee
of a position upon his return (just as there is no guarantee
of continued employment for any at-will employee).
Our dissenting colleague also argues that there was no
work for Anderson at that time, because he finds that the
Respondent had replaced Anderson at the Tillotson
jobsite. However, the dissent ignores that the Respond-
ent had not hired Anderson to work only at the Tillotson
jobsite.9 Further, neither Scherrer nor Garofalo testified
that there was no work for Anderson at any other Re-
spondent job sites. To the contrary, the Respondent im-

9 The record shows that Anderson had worked for the Respondent at
multiple jobsites and that the Respondent regularly moved employees
from jobsite to jobsite in response to the ebb and flow of work.
plicitly concedes that there was work for Anderson at its
other jobsites, because it points to Anderson’s failure to
contact Pavon (or other supervisors) for work as the rea-
son why Anderson no longer works for it. See, e.g., Re-
spondent’s Exceptions Brief page 45 (“As a result of
Anderson’s own inaction, he stopped working for Re-
spondent.”)10
3. The voter-list objection
The Board’s December 15, 2014 final rule updated the
Excelsior list requirement11 to better advance the two
objectives articulated by the Board in Excelsior: (1) en-
suring the fair and free choice of bargaining representa-
tives by maximizing the likelihood that all the voters will
be exposed to the nonemployer party arguments concern-
ing representation; and (2) facilitating the public interest
in the expeditious resolution of questions of representa-
tion by enabling the parties on the ballot to avoid having
to challenge voters based solely on lack of knowledge as
to the voter’s identity. 79 Fed.Reg. 74308, 74335–
74341, 74345 (Dec. 15, 2014). In addition to codifying
the Excelsior requirement that an employer furnish a list
of the names and home addresses of eligible voters, the
final rule also requires the employer to furnish, among
other things, “available home and personal cellular
(‘‘cell’’) telephone numbers of all eligible voters.” 29
C.F.R. §§ 102.62(d), 102.67(l). The rule also reduces the
period of time to produce the list from 7 calendar days to
2 business days after the approval of an election agree-
ment or issuance of a direction of an election, but grants
regional directors discretion to approve agreements
providing for more time or to allow additional time in
directed election cases. Id. See 79 Fed.Reg. 74353–
74358, 74428. The rule further provides that the em-
ployer’s failure to file or serve the list shall be grounds
for setting aside the election whenever proper and timely
objections are filed. 29 C.F.R. §§ 102.62(d), 102.67(l).
Here, we agree with the judge that the election should
be set aside for three reasons, each of which constitutes
an independent basis for setting aside the election. First,
approximately 90 percent of the addresses on the list
were inaccurate.12 Second, the list omitted the names of

10 We need not address our colleague’s related FES arguments be-
cause the Respondent has not argued that FES—rather than Wright
Line—should apply. See UPS Supply Chain Solutions, Inc., 364 NLRB
No. 8, slip op. at 2 (2016) (argument first raised by dissent is “not
properly before the Board for consideration.”). Accord: Ozburn-Hessey
Logistics, LLC, 362 NLRB No. 180, slip op. at 1 fn. 4 (2015), enfd.
___Fed. Appx.___, 2016 WL 7508168 (D.C. Cir. 2016); Avne Systems,
Inc., 331 NLRB 1352, 1354 (2000).
11 Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
12 See Mod Interiors, Inc., 324 NLRB 164, 164–165 (1997) (40 per-
cent address inaccuracy rate warrants setting aside the election); Ameri-
RHCG SAFETY CORP. 5
at least 15 eligible voters.13 Ten omissions were of em-
ployees eligible to vote under the Steiny/Daniel14 formula
that the parties agreed to utilize in the stipulated election
agreement,15 and 5 other omissions were of employees
the parties agreed were eligible.16 Third, the Respondent
did not provide phone numbers for any of its employees
on the list.
We find unpersuasive the Respondent’s unsupported
contention that the voter list’s shortcomings did not im-
pede the Union’s ability to communicate with the eligible
voters.17 It is obvious that the Union’s ability to com-
municate with eligible voters was impaired by the Re-
spondent’s failure to include numerous eligible voters on
the list, as well as its failures to provide correct addresses
for 90 percent of the listed employees or phone numbers
for any of the listed employees. In any event, as the
Board explained in rejecting the identical argument in the
context of an Excelsior list objection, “to look beyond
the issue of substantial compliance with the rule and into
the additional issue of whether employees were actually
informed about election issues would ‘spawn an adminis-
trative monstrosity.’” Mod Interiors, Inc., 324 NLRB at
164 (citation omitted).
We find equally unpersuasive the Respondent’s argu-
ment that we should not set aside the election in light of
the alleged large voter turnout.18 The primary purpose of

can Biomed Ambulette, Inc., 325 NLRB 911, 911, 914 (1998) (56 per-
cent address inaccuracy rate warrants setting aside election).
13 Here, the percentage of omissions (approximately 15%) exceeds
that in some pre-Woodman’s cases where elections were set aside based
on omissions (Automatic Fire Systems, 357 NLRB 2340, 2341 (2012)
(collecting cases)), the number of omissions could have affected the
outcome of the election, and the Respondent has not provided a legally
sufficient justification for the omissions. See Woodman’s Food Mar-
kets, Inc., 332 NLRB 503, 503-505 (2000).
14 Steiny & Co., 308 NLRB 1323 (1992); Daniel Construction, 133
NLRB 264 (1961), as modified at 167 NLRB 1078 (1967).
15 Contrary to the Respondent’s claim that there has been no show-
ing that it failed to include on the voter list any employees who were
eligible under that formula, the voter list omitted the names of 10 of the
12 employees who cast challenged ballots who were eligible to vote
under the Steiny/Daniel formula: Juan Fernandez, Michael Roman Gil,
Omar Sarmiento, Juan Calle, Eddy Peres, Segundo Altimirano, Em-
manual Felix, Rafael Franco, Angel Godoy, and Manuel E. Sanchez.
16 The record shows that the list omitted five employees whom the
parties agreed were eligible: Hugo Cabrera, Raymund Garcia, Edison
Ortiz, Jose Villalobos, and Angel Javier.
17 The Respondent contends that because of the showing-of-interest
requirement, the Union must have had the correct home addresses and
phone numbers of at least 30 percent of the employees. Even if this
were true, it hardly demonstrates that the Union had the correct home
addresses and phone numbers for the remaining employees.
18 Although some employees eligible to vote under the Steiny/Daniel
formula voted even though the Respondent did not include them on the
voter list, the Union correctly notes that it is possible there were addi-
tional employees who would have been eligible under that formula who
did not attempt to vote because they were unaware of the election.
the voter-list requirement is to ensure the fair and free
choice of bargaining representatives by maximizing the
likelihood that all eligible voters will be exposed to the
nonemployer party arguments concerning representation.
79 Fed. Reg. 74335–74345. See also NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 767 (1969) (Excelsior’s “dis-
closure requirement furthers this objective [of ensuring
“the fair and free choice of bargaining representatives”]
by encouraging an informed employee electorate and by
allowing unions the right of access to employees that
management already possesses.”). That a significant
percentage of eligible employees purportedly voted hard-
ly demonstrates that they were aware of the Union’s ar-
guments in favor of representation.
Nor are we persuaded by the Respondent’s contention
that we should refrain from setting aside the election
because any shortcomings or inaccuracies in the list were
“inadvertent” or “unintentional.” Just as was true with
respect to the Excelsior list, it is important that the in-
formation on the voter list be complete and accurate be-
cause of the important public policies that the list ad-
vances. The voter-list rule, like the predecessor Excelsi-
or list rule, “is not intended to test employer good faith”
(see Mod Interiors, Inc., 324 NLRB at 164); nor is em-
ployer bad faith a precondition to finding substantial
noncompliance with the list requirements. See Wood-
man’s Food Markets, Inc., 332 NLRB 503, 504 fn. 9,
505 fn. 12 (2000).
We find no merit to the Respondent’s claim, embraced
by our dissenting colleague, that it had no obligation to
include the phone numbers for its employees on the voter
list, because it did not maintain its employees’ phone
numbers in its computer database. The regulatory text of
the rule contains no such limitation. See 29 C.F.R.
§§102.62(d), 102.67(l). Rather, it requires an employer
to include “available” home and personal cell telephone
numbers, and the unit employees’ phone numbers plainly
were available to the Respondent, as the judge’s decision
makes clear.19 Given the important public interests ad-

19 In claiming that there is no evidence that RHCG’s managers or
other individuals maintained employees’ personal phone numbers “in
the course of their work responsibilities,” our colleague ignores the
testimony of Respondent’s vice president of operations that when the
Respondent’s supervisors and foremen need to contact employees about
work, they frequently contact them on their cell phones. Accordingly,
Andre Marc-Charles, the individual Respondent assigned to compile
the voter list, needed only to ask those people for the unit employees’
phone numbers in order to obtain them.
Our colleague argues, in the alternative, that the Respondent cannot
be faulted for failing to contact supervisors to obtain certain voter-list
information (employee phone numbers) not maintained in its computer
database but stored on the supervisors’ phones. But, as shown, the rule
does not provide that only employee phone numbers maintained in a
computer database are “available” for voter-list purposes. We also find
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
vanced by requiring employers to furnish employee con-
tact information to the nonemployer parties to a represen-
tation case, we see no reason to permit employers to
withhold such contact information simply because they
do not store the information in a computer database. 20
And our colleague’s dissent does not persuade us other-
wise.21
Our colleague argues that it is unwise for the Board to
require an employer to furnish employee phone numbers
unless they are maintained in a computer database, be-
cause the employer may be uncertain about the supervi-
sory status of some of its workers. Our colleague con-
jures up a parade of horribles whereby if an employer
questions an individual it mistakenly believes is a super-
visor to obtain the unit employees’ phone numbers, it
will be accused of engaging in unlawful surveillance of
Section 7 activity. Conversely, if it declines to question
an individual who is ultimately found to be a supervisor,
it will face an election objection for failing to include on
the voter list the phone numbers of the unit employees
known only to that supervisor.
However, in the more than 2 years that the rule has
been in effect, the specter of increased litigation forecast

untenable the claim that employee phone numbers were unavailable to
the Respondent for voter-list purposes given that the record shows that
employee phone numbers were available to and used by the Respondent
for work-related communications. Moreover, our colleague ignores
that Andre Marc-Charles recognized the need to contact supervisors for
information required for voter-list compliance (relating to Steiny/Daniel
eligibility) that was likewise not maintained in the Respondent’s com-
puter database.
20 We also reject the Respondent’s suggestion that the preamble to
the final rule - providing that employers would not be required to ask
the unit employees for their own phone numbers in preparation for the
list - undermines our conclusion that the Respondent’s failure to in-
clude the employees’ personal phone numbers on the voter list warrants
setting aside the election. 79 Fed. Reg. 74343 fn. 169. The Respondent
was not required to ask its unit employees for their own phone num-
bers; it simply had to ask its supervisors and foremen for the phone
numbers of the unit employees they already had and used in the ordi-
nary course of business. Nor does it matter that the Respondent might
not have had the phone numbers of every eligible voter. See 79 Fed.
Reg. 74338 fn. 146 (“the fact that an employer may not possess the . . .
personal phone numbers for each and every one of its employees does
not demonstrate that it is not worthwhile to require the employers to
disclose those employees’ . . . personal phone numbers that it does
possess.”)
21 While our colleague continues to express his disagreement with
certain provisions of the Board’s recent rulemaking, the time for exten-
sive policy debate over the provisions of the rule has come and gone—
the Board’s rule was lawfully enacted, see Associated Builders & Con-
tractors of Texas, Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016), and
both we and our dissenting colleague are bound to faithfully apply it,
regardless of our agreement or disagreement with any particular re-
quirements it establishes. The rule is not susceptible to alteration in an
individual adjudication. Nonetheless, we will respond to the concerns
our dissenting colleague raises to the extent that they are relevant to
adjudicating the particular dispute before us.
by the dissent has not come to pass—and for good rea-
son. If an employer relies on certain individuals to con-
vey work-related information to, or receive work-related
information from, unit employees, such individuals are
its agents, if not its supervisors. Our colleague does not
explain, and we fail to see, how an employer could be
deemed to have engaged in unlawful union surveillance
if it asks such individuals to disclose the unit employees’
phone numbers—utilized in the course of their work—so
that it may comply with the Board’s voter-list require-
ment. The requested information does not reveal the
union sentiments or the union activity of the unit em-
ployees (or of the supervisors or agents), and the em-
ployer has a lawful reason for requesting the information,
which it will presumably convey when making the re-
quest. For the same reasons, we fail to see how an em-
ployer could be deemed to have coercively interrogated
such individuals by asking them for the contact infor-
mation of the unit employees.
And this case does not implicate the concerns raised by
our colleague. The Respondent’s failure to include
phone numbers was not due to uncertainty over who its
supervisors were. Rather, this case, like the more than
90 percent of pre-Rule and post-Rule Board cases involv-
ing elections, involves an employer who entered into a
stipulated election agreement, waiving its right to a pre-
election hearing. Moreover, although Andre Marc-
Charles, the individual assigned to compile the voter list,
testified that he spoke to supervisors to obtain infor-
mation relating to employees who might be eligible un-
der the Steiny/Daniel formula, he admitted that he did not
ask any supervisors for the phone numbers of the unit
employees they had. Neither the Respondent nor our
colleague can persuasively justify Andre Marc-Charles’
failure to do so,22 or dispute that Marc-Charles could
have timely obtained the phone numbers by requesting
them from supervisors and foremen.
Our colleague also appears to complain that the time
period provided in the Rule for producing the contact
information is unreasonable “under any circumstances”

22 Our colleague also argues that the expanded voter-list require-
ments inappropriately fail to accommodate employees’ privacy inter-
ests. Every court to have considered the matter has rejected our col-
league’s position, and we see no need to repeat the lengthy explanations
the Board provided in the Rule for its conclusion that the substantial
public interests advanced by the expanded disclosure requirements
outweigh the employees’ acknowledged privacy interest in the limited
information that will be disclosed to a limited group of recipients to be
used for limited purposes. 79 Fed. Reg. 74335–74352, 74427–74428.
See Associated Builders and Contractors of Texas, Inc. v. NLRB, 826
F.3d 215, 223–226 (5th Cir. 2016) (affirming Associated Builders &
Contractors of Texas, Inc. v. NLRB, 2015 WL 3609116, *7–*11
(W.D.Tex. 2015); Chamber of Commerce of the United States of Amer-
ica v. NLRB, 118 F.Supp.3d 171, 208–215 (D.D.C. 2015).
RHCG SAFETY CORP. 7
in cases where employee contact information is not
stored in the employer’s computer database. However,
employers and elections come in all shapes and sizes,
and the manner in which employers conduct their opera-
tions varies. 79 Fed. Reg. 74353–74357, 74422. “[I]n the
Board’s experience, the units for which lists must be
produced are typically small— with half of all units con-
taining 28 or fewer employees over the past decade.” 79
Fed.Reg. 74354. See also 79 Fed. Reg. 74422 (noting
that in the past decade the Board has conducted elections
in units smaller than five employees). In cases involving
small units, the quantum of information required for pro-
duction of the voter list is, by definition, quite limited.
The number of individuals potentially possessing the
necessary information is similarly limited, “meaning that
even for those small employers which lack computerized
records of any kind, assembling the information should
not be a particularly time-consuming task.” 79 FedReg.
74354.23 And, in reality, employers have many more
than 2 business days to undertake the process. The de-
scription of representation case procedures, which is
served with the petition, explicitly advises employers of
the voter-list requirement. Accordingly, employers con-
cerned about their ability to produce the list can begin
working immediately, before an election agreement is
approved or an election is directed—and thus before the
clock begins running on the 2-business day time period.
79 Fed.Reg. 74353–74354.
The Board also explained why it had rejected the con-
tention that construction industry employers are entitled
to a categorical exemption from the 2-business day
timeframe because they may be required to use the
Steiny/Daniel formula requiring analysis of 2 years of
payroll records. Not only may parties stipulate not to use
that formula, but also some petitions are for units already
covered by collective-bargaining agreements, resulting in
employers’ ready access to the necessary information.
The Board also explained that not all construction indus-
try employers have significant numbers of employees
covered by the formula and that although construction
employers may maintain the records necessary to pro-
duce the list at different job sites, modern technology
renders transmission of the necessary information to the
person(s) compiling the list practicable. 79 Fed. Reg.
74354. The Board also found it significant that prior to
the final rule, construction industry employers, whether
large or small, and whether decentralized or not, only had
7 calendar days to produce an Excelsior list, and that the

23 Those employers that maintain all the contact information for their
employees in a single paper document will have an easier time still
complying with the Rule.
advent of overnight mail and electronic filing and service
by itself warrants a reduction in the period of time to
produce the list. 79 Fed.Reg. 74354. See also 79
Fed.Reg. 74353.
Finally, our colleague, like the Respondent, argues that
the time afforded the Respondent to produce the voter
list was “especially” unreasonable given the combination
of circumstances of this case, where (1) the Steiny/Daniel
eligibility formula is applicable, (2) the Respondent does
not maintain its employees’ telephone numbers in a
computer database (or in a single paper file), and (3) the
unit is larger than the average Board unit. However, if
the Respondent believed that the normal 2-business day
time frame was inadequate, it could have negotiated with
the Petitioner for a longer period of time to produce the
list or, failing that, it could have refused to enter into an
election agreement and gone to a hearing to explain why
it needed more time to produce the list. See 29 C.F.R. §§
102.62(d), 102.67(l). See also 79 Fed.Reg. 74354–74355
(“under the final rule, the regional director has discretion
to grant an employer more time to produce the list, upon
a showing of extraordinary circumstance which may be
met by an employer’s particularized demonstration that it
is unable to produce the list within the required time limit
due to specifically articulated obstacles to its identifica-
tion of its own employees.”). But the Respondent did
neither. Instead, the Respondent voluntarily entered into
a stipulated election agreement providing for the normal
2-business day timeframe. Having done so, the Re-
spondent has no cause to complain that it should have
been given more time. Cf. AOTOP, LLC v. NLRB, 331
F.3d 100, 105 (D.C. Cir. 2003) (“Because the Company
made no specific request for an interpreter, it will not be
heard now to claim the Board's failure to provide one
rendered the election unfair.”); Micro Pacific Develop-
ment Inc. v. NLRB, 178 F.3d 1325, 1335–-1336 (D.C.
Cir. 1999) (having entered into election agreement in
which it stipulated that unit containing all of its employ-
ees constituted an appropriate bargaining unit, employer
was precluded from arguing that NLRB erred by combin-
ing employer’s resident and nonresident employees into
a single bargaining unit); Pulau Corp., 363 NLRB No.8,
slip op. at 1 fn. 1 (2015) (employer’s challenge to re-
gional director’s designation of election date is not
properly before the Board because it did not present its
challenge to the director prior to the election) .24

24 We also note that the Respondent was explicitly informed of the
voter-list requirement (including the eligibility formula applicable in
construction industry cases) in the description of the representation case
procedures served by the Regional Director on August 12, 2015, more
than 2 weeks before the stipulated election agreement was approved on
August 27, 2015. See generally 79 Fed. Reg. 74354 (“employers gen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ORDER
The National Labor Relations Board orders that the
Respondent, RHCG Safety Corp., Brooklyn, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion activities.
(b) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Claudio Anderson full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Claudio Anderson whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, as set forth in the remedy
section in the judge’s decision, as amended in this deci-
sion.
(c) Compensate Claudio Anderson for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 29,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter, notify Claudio Anderson in
writing that this has been done and that the discharge will
not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.

erally will have more than a week to prepare the voter list, assuming
they begin work when they receive the petition and are explicitly ad-
vised of the voter list requirement in the description of representation
case procedures served with the petition.”).
(f) Within 14 days after service by the Region, post at
its Brooklyn, New York facility copies of the attached
notice marked “Appendix.”25 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 30, 2015.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that Case 29–RC–157827 is
severed and remanded to the Regional Director for Re-
gion 29 and that the election held on September 18,
2015, be set aside and a new election held.
Dated, Washington, D.C. June 7, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, concurring in part and dissenting
in part.
This case provides another illustration of concerns ex-
pressed in my dissenting views regarding the Board’s

25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
RHCG SAFETY CORP. 9
Election Rule.1 Similar to another recent Board decision,
European Imports, Inc., 365 NLRB No. 41 (2017), it
illustrates the downside of the Election Rule’s “preoccu-
pation with speed between petition-filing and the elec-
tion.”2 Applying the Election Rule in European Imports,
the Regional Director scheduled an election to occur a
mere 20 days after the union filed its representation peti-
tion, and some disputed employee-voters were guaran-
teed as little as 3 days’ notice of the election.3 Here, the
Board applies the Election Rule’s expanded voter-list
disclosure requirements, which provide that the employer
must give the Board’s Regional Office and the union a
complete list of eligible voters within 2 business days
after the Regional Director either approves a stipulated
election agreement or issues a decision and direction of
election. This was especially challenging in the instant
case because voter eligibility turned in part on the num-
ber of days particular individuals were employed in the
preceding 12 months, and in some instances, the number
of days they were employed in the preceding 24 months.4
In addition, under the Election Rule’s expanded disclo-
sure requirements, the voter list must include—to the
extent “available” to the employer—each eligible em-
ployee’s personal email address and personal phone
numbers, in addition to other detailed information.5
The Respondent’s voter list identified 84 eligible vot-
ers, and the record establishes that approximately 90 per-
cent of the home addresses contained in the list were
incorrect (only four of the listed home addresses were
accurate). Moreover, the list included no phone num-
bers, and the Respondent argues it had no obligation to
provide phone numbers because they were not “availa-

1 79 Fed. Reg. 74308–74490 (Dec. 15, 2014) (codified at 29 C.F.R.
Sec. 101.23 et seq., Sec. 102.60 et seq., and Sec. 102.30). I dissented
from the Election Rule for reasons set forth in views I authored jointly
with former Member Johnson. Id. at 74430–74460 (dissenting views of
Members Miscimarra and Johnson).
2 Id. at 74436 (dissenting views of Members Miscimarra and John-
son).
3 In European Imports, supra, the representation petition was filed
on Friday, February 3, 2017; the Regional Director’s Decision and
Direction of Election, which approved the inclusion of certain voters
whose inclusion was not clear from the petition, issued on Thursday,
February 16; the Notice of Election had to be posted by Monday, Feb-
ruary 20; and the election was held on Thursday, February 23. See
European Imports, 365 NLRB No. 41, slip op. at 1–2 (Acting Chair-
man Miscimarra, dissenting).
4 In the construction industry, where sporadic employment patterns
are typical, eligibility to vote in a representation election depends on
whether an individual was employed for a sufficient number of days
over 12- and 24-month periods preceding the election eligibility date.
See fn. 13, infra.
5 29 C.F.R. Sec. 102.62(d). See fn. 11, infra and accompanying
text.
ble” within the meaning of the Election Rule.6 Under the
traditional standard applied by the Board regarding voter
lists, I agree that the election should be set aside based on
the large number of incorrect home addresses. However,
I continue to disagree with the Election Rule’s expanded
voter-list disclosure requirements—particularly in com-
bination with the accelerated election timetable imposed
by the Election Rule—and I believe the judge and my
colleagues err when they find that employees’ personal
phone numbers were “available” to the Respondent.7
Thus, I believe the Board cannot appropriately conclude
that the Respondent’s failure to disclose employees’
phone numbers independently warrants setting aside the
election.
Separate from the election issue, my colleagues also
find that RHCG violated the National Labor Relations
Act (NLRA or Act) by interrogating and discharging
employee Claudio Anderson. I agree that Anderson was
unlawfully interrogated in violation of Section 8(a)(1) of
the Act.8 As explained below, however, I disagree that

6 The record also establishes that the Respondent’s voter list omitted
at least 15 individuals who were eligible to vote in the election. Be-
cause I agree with my colleagues that the number of incorrect addresses
warrants setting aside the election based on the traditional standards
applied by the Board, I do not reach or pass on whether the omission of
15 individuals from a bargaining unit consisting of roughly 100 em-
ployees would independently justify setting aside the election.
7 My colleagues say that my duty is to faithfully apply the Election
Rule. I believe my duty is to faithfully give effect to the intent of Con-
gress as expressed in the National Labor Relations Act, as I understand
it—and where my understanding differs from that of the current Board
majority, my duty is to dissent. But even if my colleagues are correct,
nothing in the Election Rule compels the conclusion that the phone
numbers of unit employees were “available” to the Respondent under
the particular circumstances of this case; and for the reasons explained
below, I believe they were not. Accordingly, since the Election Rule
requires only that the nonpetitioning party furnish the petitioner “avail-
able” phone numbers, I would dissent even if I agreed with the Election
Rule’s voter-list requirements.
8 I agree with my colleagues that Supervisor David Scherrer unlaw-
fully interrogated Anderson under the totality of the circumstances test
set forth in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). However,
contrary to my colleagues, I do not rely on the fact that Scherrer did not
inform Anderson of a legitimate purpose for the questioning and did
not provide Anderson with assurances against reprisals. By taking
these factors into consideration, my colleagues treat questions regard-
ing union matters as inherently coercive, requiring the employer to take
affirmative steps to mitigate the coercion. The Board rejected this view
in Rossmore House, and it is inconsistent with that decision to include
these considerations in a totality-of-the-circumstances analysis. In this
regard, I agree with former Member Hayes, who observed that “proof
that an employer has informed an employee that it has a legitimate
purpose for questioning and has given assurances against retribution is
not prerequisite to finding that an interrogation is lawful.” Evenflow
Transportation, Inc., 358 NLRB 695, 696 fn. 4 (2012), adopted by
reference 361 NLRB No. 160 (2014).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
RHCG violated Section 8(a)(3) by discharging Ander-
son.
Discussion
RHCG Safety Corp. (RHCG or the Respondent) per-
forms demolition and concrete work in two separate divi-
sions, a demolition division and a concrete division.
Pursuant to a Stipulated Election Agreement approved by
the Regional Director on August 27, 2015, an election
was conducted among RHCG’s full-time and regular
part-time demolition workers on September 18, 2015.
The Union lost the election 46 to 36, with 7 nondetermi-
native challenged ballots, and now seeks to overturn the
election. I agree with my colleagues that the election
must be set aside, but only for the reasons set forth be-
low.
1. The Voter-List Objection. The Election Rule re-
quires an employer to provide a list of eligible voters—
commonly referred to as an “Excelsior9 list”—to both the
Region and the other party or parties within 2 business
days of the Regional Director’s approval of a stipulated
election agreement or direction of an election.10 The
Election Rule further requires that the list include “the
full names, work locations, shifts, job classifications, and
contact information (including home addresses, available
personal email addresses, and available home and per-
sonal cellular (‘cell’) telephone numbers) of all eligible
voters” as well as of “individuals who . . . will be permit-
ted to vote subject to challenge.”11 Failure to comply
with this requirement constitutes grounds for setting
aside the election.12
Here, as the judge found, the list submitted by RHCG
contained about 84 names and home addresses. Howev-
er, only four home addresses were correct, the list in-
cluded no phone numbers or email addresses, and the list
omitted a number of eligible voters. The Petitioner filed
an objection, alleging that RHCG provided it with an
inadequate voter list.
My colleagues sustain the Petitioner’s objection and
set aside the election based on three independent reasons:
(1) approximately 90 percent of the addresses on the list
were inaccurate; (2) RHCG did not provide phone num-
bers for any of its employees; and (3) the list omitted the

9 See Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
10 29 C.F.R. Sec. 102.62(d). By comparison, under Excelsior Un-
derwear, which governed for nearly 50 years until the Election Rule
was adopted, the employer had 7 calendar days from the date the Re-
gional Director approved the election agreement or directed an election
to provide the voter list.
11 29 C.F.R. Sec. 102.62(d). Again comparing the Election Rule re-
quirements with prior practice, under Excelsior the employer was re-
quired to include in the list only the names and addresses of eligible
voters.
12 29 C.F.R. Sec. 102.62(d).
names of at least 15 eligible voters, 10 of whom were
eligible to vote under the Steiny/Daniel formula the par-
ties agreed to utilize.13
As stated above, I agree with my colleagues’ conclu-
sion that the election should be set aside because 90 per-
cent of the addresses in the voter list were incorrect,14
and I do not reach or decide whether the omission of 15
employees from the list (10 of whom were only eligible
under the Steiny/Daniel formula) independently requires
a new election.15
Unlike my colleagues, however, I believe the record
establishes—especially given the accelerated election
timetable imposed by the Election Rule—that the phone
numbers of eligible voters were not “available” to
RHCG. Therefore, I disagree that the omission of em-
ployee phone numbers from the voter list independently
warrants setting aside the election.
It is uncontroverted that RHCG does not maintain any
database or other repository containing employees’ per-
sonal phone numbers, and there is no evidence that
RHCG’s managers or other individuals maintained a list
of employees’ personal phone numbers in the course of
their work responsibilities. Nevertheless, the judge
found that employee phone numbers were “available” to
RHCG because some employee phone numbers were

13 See Steiny & Co., 308 NLRB 1323 (1992), and Daniel Construc-
tion, 133 NLRB 264 (1961), modified at 167 NLRB 1078 (1967).
Under the Steiny/Daniel formula, “in addition to those eligible to vote
under the standard criteria, unit employees are eligible if they have
been employed for 30 days or more within the 12 months preceding the
eligibility date for the election, or if they have had some employment in
those 12 months and have been employed for 45 days or more within
the 24-month period immediately preceding the eligibility date.” Steiny
& Co., 308 NLRB at 1326.
14 See, e.g., Mod Interiors, Inc., 324 NLRB 164 (1997) (setting aside
election based on 40-percent address inaccuracy rate); American Bio-
med Ambulette, Inc., 325 NLRB 911 (1998) (setting aside election
based on 56-percent address inaccuracy rate).
15 I note, however, that the Steiny/Daniel eligibility formula requires
an employer to review 2 years’ worth of personnel records to determine
who may have been employed for a total of 45 days during the 24
months preceding the election eligibility date; the election was held in
September 2015; and RHCG only began using a computer program to
monitor employees’ time and attendance around July 2015. Before that
date, it used sign-in/sign-out timesheets. With only 2 business days to
compile the Excelsior list and 2 years’ worth of timesheets to review, it
is unsurprising that some employees eligible to vote under the
Steiny/Daniel formula were missed. Former Member Johnson and I
warned of situations like this in our dissent to the Election Rule, ob-
serving that the extremely compressed window of time to produce the
extensive voter-information disclosures required of employers under
the Election Rule would likely result in more rerun elections when a
union fails to secure a majority vote in the first election. See 79
Fed.Reg. at 74454–74455 (Members Miscimarra and Johnson, dissent-
ing).
RHCG SAFETY CORP. 11
stored in the phones of some of its supervisors.16 This
finding is unprecedented: the Election Rule itself does
not define the term available, and until today, the Board
had never deemed employees’ phone numbers stored on
supervisors’ phones but not otherwise maintained by
their employer to be “available” for purposes of the Elec-
tion Rule’s voter-list disclosure requirements. Neverthe-
less, my colleagues adopt the judge’s interpretation of
the Election Rule. For several reasons, I disagree that the
Election Rule imposes on employers a duty to identify
each and every supervisor and require these individuals
to search their phones for employees’ personal phone
numbers (and, under the Election Rule, employees’ per-
sonal email addresses).
First, such a requirement is unrealistic given the 2-
business-day time limit imposed by the Election Rule for
the employer to transmit the eligible-voter list. Accord-
ing to my colleagues, employers like RHCG must con-
tact each and every supervisor and require them to search
their phones17 for employees’ personal phone numbers
(and, under the Election Rule, their personal email ad-
dresses as well)—going back 2 years, consistent with the
Steiny/Daniel eligibility formula when applicable—and
to transmit this information to management officials
who, in turn, must aggregate this data for inclusion in
mandatory disclosures that must be filed and served
within 2 business days after the Regional Director issues
the decision and direction of election or approves an
election agreement. In addition, and at the same time,
RHCG was required to manually search 24 months’
worth of sign-in sheets to identify who even qualified as
eligible voters (since, under the Steiny/Daniel formula,
eligible voters include anyone employed for 30 days or
more within the 12 months preceding the eligibility date
for the election, or 45 days or more within the 24-month
period preceding the eligibility date if they had some
employment during the 12 months preceding that date).18
In my view, it is unreasonable for the Board to conclude
that employees’ personal phone numbers are “available”
and must be disclosed under the Election Rule under any
circumstances,19 but especially under circumstances such
as these.20

16 RHCG has approximately 13 or 14 supervisors in the demolition
division.
17 The majority does not say that only work phones must be
searched, so evidently supervisors must be required to search their
personal phones as well as their work phones.
18 Steiny & Co., 308 NLRB at 1326.
19 In defense of reducing the 7-day deadline for transmitting the vot-
er list to a 2-business-day deadline, my colleagues repeat various argu-
ments advanced by the Board majority in the Election Rule. They omit,
however, the driving force behind this change and others effected by
the Election Rule: the Board majority’s determination to hold elections
Second, in deeming employees’ personal phone num-
bers “available” when supervisors store them on their
phones, and in mandating that employers require super-
visors to search their phones for those phone numbers,
the judge and my colleagues overlook another aspect of
the Election Rule—namely, that it prevents employers
from learning, prior to the election, who constitutes a
“supervisor” because the Rule defers to postelection pro-
ceedings the resolution of most questions regarding voter
eligibility and supervisory status.21 Moreover, the Board
applies an often counterintuitive view of supervisory
status—see, e.g., Buchanan Marine, L.P., 363 NLRB No.
58 (2015) (tugboat captains presiding over six-member
crews are not supervisors); WSI Savannah River Site, 363
NLRB No. 113 (2016) (lieutenants who lead response
teams to repel armed terrorist attacks on nuclear power-
plants are not supervisors)—and employers may well be
uncertain whom the Board will or will not deem to be
supervisor. It defies reason to hold that the Election Rule
mandates a preelection search for employees’ personal
phone numbers stored in supervisors’ phones, when the
same Election Rule provides that employers in most cas-
es cannot even litigate who qualifies as a supervisor until
after the election.22
Third, as expressed in the dissenting views to the Elec-
tion Rule, I believe the Rule’s expanded voter-list disclo-
sure requirements inappropriately fail to accommodate

“at the earliest date practicable.” 79 Fed. Reg. at 74310. The specific
arguments my colleagues reiterate are all in service of that overarching
goal. But as former Member Johnson and I explained in our dissenting
views, when it comes to Board-conducted elections “the Act makes
other considerations more important than speed.” 79 Fed. Reg. at
74432–74433.
20 My colleagues fault Andre Marc-Charles, the individual RHCG
assigned to compile the voter list, for not asking supervisors for em-
ployee phone numbers stored on their phones, and they also fault
RHCG for not negotiating with the Petitioner or asking the Regional
Director for more time to file and serve the voter list. But as stated
above, before today the Board had never held that employees’ personal
phone numbers stored in supervisors’ phones are “available” for pur-
poses of the Election Rule’s voter-list disclosure requirements. RHCG
and Andre Marc-Charles cannot be faulted for failing to predict that
such data would be deemed “available” in this case.
21 See 79 Fed. Reg. at 74438 fn. 581 (“Without a preelection hearing
regarding whether certain individuals are eligible voters versus statuto-
ry supervisors, many employees will not know there is even a question
about whether fellow voters . . . will later be declared supervisor-agents
of the employer. Many employers will be placed in an untenable situa-
tion regarding such individuals based on uncertainty about whether
they could speak as agents of the employer or whether their individual
actions—though not directed by the employer—could later become
grounds for overturning the election.”) (dissenting views of Members
Miscimarra and Johnson).
22 See fn 21, supra; see also Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945) (an administrative agency’s interpretation of
its own regulations is entitled to great deference “unless it is plainly
erroneous or inconsistent with the regulation”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
employees’ privacy interests.23 Here, my colleagues
likewise fail to adequately appreciate employees’ privacy
interests in their personal phone numbers. When an em-
ployee uses his or her personal phone to call or text a
supervisor, this does not mean the employee consented to
the employer’s regular use of the employee’s personal
phone number, much less that he or she consented to the
dissemination of his or her personal phone number to
third parties. Indeed, Andre Marc-Charles, who is in
charge of RHCG’s payroll, testified without contradic-
tion that RHCG does not require employees to provide
their personal phone numbers. In this context, it is un-
reasonable to suggest that an employee’s use of a per-
sonal device to reach a supervisor, which caused the em-
ployee’s personal phone number to be stored in the su-
pervisor’s phone, means the phone number is “available”
for purposes of the Election Rule, requiring the transmit-
tal of this information to the Government (i.e., the Board)
and to third parties (i.e., a union).24 By providing that
employee personal information must be disclosed only to
the extent it is “available,” the Election Rule obviously
contemplates that there is no blanket obligation for an
employer to obtain and assemble such information. To
the extent the Election Rule provided this limited ac-

23 In our dissenting views to the Election Rule, former Member
Johnson and I criticized the Rule’s expansion of Excelsior disclosure
mandates to require employers to furnish available personal telephone
numbers without adequately protecting employees’ legitimate privacy
interests in that information. See 79 Fed. Reg. at 74452–74454 (Mem-
bers Miscimarra and Johnson, dissenting). One federal court has re-
jected concerns that disclosure of this information subjects employees
to a risk of identity theft because, according to the court, this risk arises
in the first place from the fact that “organizations maintain records
electronically,” and such records may be hacked. Associated Builders
& Contractors of Texas, Inc. v. NLRB, No. 1–15-CV-[00]026 RP, 2015
WL 3609116, at *11 (W.D. Tex. June 1, 2015), affd. 826 F.3d 215 (5th
Cir. 2016). In this case, however, it is undisputed that RHCG does not
maintain any record—electronic or otherwise—of employees’ personal
phone numbers. By their decision today, my colleagues effectively
require employers like RHCG to create such an electronic record for
the first time whenever an election has been stipulated to or directed,
thereby giving rise to the risk of identity theft described by the court in
Associated Builders & Contractors, supra. See also 29 C.F.R. Sec.
102.62(d) (requiring the voter list to be filed and served electronically).
Again, in this respect, I believe my colleagues and the judge impose an
obligation that is contradicted by the Election Rule’s limitation of the
required disclosures to phone numbers that are already “available.”
Indeed, the majority’s finding here contradicts the definition of the
word available as “present or ready for immediate use.” See
https://www.merriam-webster.com/dictionary/available (last viewed
March 15, 2017).
24 Aside from the “availability” limitation, which my colleagues ef-
fectively negate today, the Election Rule rejected every other accom-
modation of employee privacy interests that former Member Johnson
and I advocated, along with numerous parties who provided input dur-
ing the rulemaking process. See 79 Fed. Reg. at 74453–74454 (Mem-
bers Miscimarra and Johnson, dissenting).
commodation of employee privacy interests, the Board’s
decision in the instant case effectively eliminates it.
Fourth, mandating that employers require supervisors
to search their phones for employee contact information
will inevitably invite collateral litigation in state or fed-
eral court, not to mention the filing of blocking charges
alleging the employer has violated the Act by demanding
that statutory employees—mistakenly identified as su-
pervisors—disclose the personal phone numbers of fel-
low employees. In defense of their holding, my col-
leagues insist that the employer is only required to ask
“supervisors” for employees’ personal phone numbers,
not the employees themselves. Yet the Board’s volumes
are filled with divided opinions in Section 2(11) cases,
and the Board has consistently rejected my view that
supervisor determinations should, among other things, be
consistent with “common sense.”25 Navigating the
Board’s contradictory cases regarding supervisor status
under Section 2(11) is not for the faint of heart, and par-
ties can—and will—make mistakes in both directions,
with objections and/or blocking charges to follow. If an
employer believes Employee X is not a supervisor and
therefore refrains from demanding a search of his or her
phone for coworkers’ personal phone numbers, any self-
respecting union will predictably file a postelection ob-
jection—if it loses the election—alleging that X is a su-
pervisor and the voter list erroneously omitted employ-
ees’ personal phone numbers stored on X’s phone. On
the other hand, if the employer believes that Employee X
is a supervisor and requires a search of his or her phone
or phones resulting in the discovery of numerous
coworker personal phone numbers, any self-respecting
union will predictably file an unfair labor practice charge
alleging that Employee X is not a supervisor, and the
compelled search of Employee X’s phone(s) and forced
disclosure of coworkers’ personal phone numbers consti-
tuted unlawful surveillance or other interference with or
coercion of employees’ Section 7 rights in violation of
Section 8(a)(1), which may block the election or provide
the basis for postelection objections. Either way, today’s
decision will predictably result in more litigation, more
expense for the parties, and—ironically, given the pre-
mium placed by the Election Rule on speed—greater
uncertainty and delay regarding whether or when any
election will take place and whether the results of that
election, if and when it occurs, will be given effect by the
Board.

25 See Buchanan Marine, supra, slip op. at 10 (Member Miscimarra,
dissenting) (suggesting that the Board’s supervisor determinations
should pass “the test of common sense,” which my colleagues criticized
as “a new test for supervisory status”).
RHCG SAFETY CORP. 13
2. Anderson’s alleged discharge. RHCG’s vice presi-
dent of operations in charge of the demolition division,
Christopher Garofalo, testified without contradiction that
RHCG does not provide its employees paid vacation, an
employee’s job is not guaranteed if he takes time off or
goes on vacation, and RHCG fills the positions of em-
ployees who take time off if it needs those positions
filled.
On August 5, 2014, Claudio Anderson began working
for the Respondent as an unskilled laborer in the concrete
division.26 Anderson worked at a number of construction
sites under Supervisor David Scherrer and Supervisor
Nick Pavon. In July 2015, while working at 2301 Tillot-
son Avenue, Bronx, New York (Tillotson jobsite), An-
derson requested one month time off to visit his mother
in Panama, and Scherrer granted his request. Anderson
understood that his position would likely be filled: he
testified that he let Scherrer know about his plan to take
an extended leave because Scherrer “need[ed] somebody
to replace him.” July 23, 2015, was Anderson’s last day
at work.27 However, before leaving for Panama, Ander-
son received a call from his mother, who told Anderson
he did not need to come. Thereafter, Anderson sought to
return to RHCG. Specifically, from July 30 to August 2,
2015, Anderson texted Scherrer several times asking for
an opportunity to work. Scherrer replied that he had
filled Anderson’s spot, and he asked Anderson to come
see him.28 On August 4, Anderson met Scherrer at the
Tillotson site. Scherrer told Anderson that there was no
work for him. According to Anderson, Scherrer suggest-
ed that Anderson speak with Nick Rodriguez, an em-
ployee in the demolition division. Anderson also testi-
fied that Rodriguez told him that VP of Operations
Garofalo said that Anderson and some other guys could
not work for RHCG anymore.29 After the conversation

26 Supervisor David Scherrer testified without contradiction that
while working under his supervision, Anderson put down wire mesh,
moved rebar, and swept.
27 See R. Exh. 3.
28 Scherrer also asked whether Anderson worked in the Union,
which I agree was an unlawful interrogation. See supra fn. 7.
29 Contrary to Anderson, Scherrer testified that he instructed Ander-
son to contact Supervisor Pavon, with whom Anderson previously
worked. Employee Rodriguez denied talking with Anderson, and
Garofalo denied knowing who Anderson was, let alone saying that
Anderson could not work for RHCG anymore. (Again, Anderson was
employed in the concrete division, and Garofalo oversaw the demoli-
tion division.) The Respondent excepts to the judge’s failure to give
adequate consideration to the testimony of Scherrer, Rodriguez, and
Garofalo. The Respondent also excepts to the judge’s ruling prohibit-
ing it from questioning Anderson regarding his filing of a possibly
fraudulent insurance claim, where the judge based his ruling on his
view that “there is no issue of credibility in this case,” which is clearly
incorrect. Because I agree with the Respondent that Anderson was not
with Rodriguez, Anderson believed that he was dis-
charged. Anderson did not contact Supervisor Pavon or
any other supervisors to try to obtain work.
The judge rejected the Respondent’s contention that
Anderson did not suffer an adverse employment action.
The judge relied on Scherrer’s failure to put Anderson to
work and Rodriguez’ testimony regarding Garofalo’s
statement. The judge found that the Respondent dis-
charged Anderson in violation of Section 8(a)(3) because
it believed that he was becoming involved with the Un-
ion. My colleagues affirm the judge’s finding that the
Respondent discharged Anderson, and they find that the
discharge was unlawful under the Wright Line30 test. I
dissent from their findings for the following reasons.
First and most importantly, I believe the record com-
pels a finding that Anderson’s employment with the Re-
spondent ended when he voluntarily took time off, and
this precludes a finding that he was discharged. It is un-
disputed that Anderson voluntarily left his job at the Til-
lotson jobsite on July 23, 2015, to visit his mother in
Panama. The record shows that the Respondent made no
promise of continued or subsequent employment to An-
derson when he voluntarily left the Tillotson jobsite.
Vice President of Operations Garofalo testified without
contradiction that RHCG does not provide its employees
paid vacation, an employee’s job is not guaranteed if he
takes time off or goes on vacation, and RHCG fills the
positions of employees who take time off if it needs
those positions filled.31 Anderson acknowledged that
RHCG’s employees get replaced when they are gone for
an extended time. Indeed, Anderson stated that he let
Supervisor Scherrer know about his plan to take an ex-
tended leave because Scherrer “need[ed] somebody to
replace him.”32 Supervisor Scherrer also informed An-

unlawfully discharged, however, I find it unnecessary to pass on the
Respondent’s exceptions.
30 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
31 The General Counsel effectively acknowledged that RHCG’s em-
ployees have a break in their employment when they take time off. See
testimony of Garofalo at Tr. 626 (“Q. [B]ecause RHCG doesn’t provide
vacation. . . . if someone wanted to go on vacation they would have to
have a break in their employment and then come back?”).
32 Cases cited by the majority do not involve employees who volun-
tarily quit their jobs for personal reasons and later asked to come back.
Rather, they involve employees who were effectively discharged while
participating in a strike. See Poly-America, Inc. v. NLRB, 260 F.3d
465, 477 (5th Cir. 2001); Champ Corp., 291 NLRB 803 (1988). An-
derson was not discharged. He took voluntary leave, knowing his
position could be filled in his absence and expecting that it would be
filled. By taking leave from this particular employer with these particu-
lar policies and practices, Anderson severed the employment relation-
ship, at least for the time being. I disagree with the majority that
whether Anderson intended to permanently sever his employment
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
derson that his spot had been filled when Anderson con-
tacted Scherrer about coming back to the Tillotson
jobsite.
The judge did not address the testimony of Garofalo
and Anderson—testimony that supports a finding that
Anderson voluntarily left the Respondent’s employ. In-
stead, the judge found that events after Anderson left his
employment demonstrate that Anderson was dis-
charged.33 Specifically, the judge relied on evidence that
Scherrer did not put Anderson back to work after Ander-
son so requested, Scherrer told Anderson that there was
no work for him, and employee Rodriguez told Anderson
that Garofalo did not want him working for the company
anymore. However, this evidence establishes that the
Respondent did not rehire Anderson; it is irrelevant to
determining whether the Respondent discharged Ander-
son in the first place. Further, the complaint did not al-
lege that the Respondent unlawfully failed to hire Ander-
son; and even if failure to hire would be deemed closely
connected to the complaint’s unlawful discharge allega-
tion, the parties did not litigate a failure-to-hire issue.34
On this basis alone, I dissent from my colleagues’ Sec-
tion 8(a)(3) violation finding regarding Anderson.
Moreover, even if a failure-to-hire allegation is proper-
ly before the Board, I would dismiss the allegation. To
establish a discriminatory refusal-to-hire violation under
FES,35 the General Counsel must show that (1) the re-
spondent was hiring or had concrete plans to hire when
the alleged refusal to hire occurred; (2) the applicant had
experience or training relevant to the announced or gen-
erally known requirements of the position, or alternative-
ly, the employer has not adhered uniformly to such re-
quirements, or the requirements were themselves pre-
textual or were applied as a pretext for discrimination;
and (3) antiunion animus contributed to the decision not
to hire the applicant. Once the General Counsel has
made this showing, the burden shifts to the respondent to
show that it would not have hired the applicant even in
the absence of his or her union activity or affiliation. Id.
at 12. In my view, the General Counsel failed to sustain
his initial burden under FES because the record does not
support a finding that the Respondent was hiring when
the (un)alleged refusal to hire occurred. See id. at 24

relationship with the Respondent has any bearing on the question
whether he voluntarily left the Respondent’s employ in the first place.
33 Tellingly, neither the judge nor the majority state the date on
which Anderson was supposedly discharged. The Region’s compliance
officer will have to guess when the backpay period commences.
34 See Pergament United Sales, 296 NLRB 333, 334 (1989), enfd.
920 F.2d 130 (2d Cir. 1990).
35 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd.
301 F.3d 83 (3d Cir. 2002).
(holding that there can be no discriminatory refusal to
hire if there is no position).36
To see that the General Counsel did not meet his bur-
den of proof, one must first understand the Respondent’s
hiring practices. The record evidence indicates that the
Respondent does not maintain a list of applicants or for-
mer employees and does not contact previous applicants
or former employees when a position becomes available
for which they are qualified. Scherrer testified without
contradiction that he never calls back a person who had
expressed an interest in employment. Garofalo similarly
testified that the Respondent does not maintain a list of
applicants for a job. The testimony of Scherrer and
Garofalo suggests that when a job opens up, the Re-
spondent hires whoever is available at that moment ra-
ther than contacting individuals who had applied previ-
ously or former employees like Anderson who had ex-
pressed an interest in coming back to RHCG.37
There is no evidence that the Respondent had an avail-
able position for an unskilled laborer in the concrete di-
vision at the time Anderson inquired about returning to
that division, which was between July 30 and August 4,
2015.38 Scherrer said that he had no work for Anderson
at the Tillotson jobsite at that time, and nothing in the
record contradicts Scherrer’s statement. The record
shows that Scherrer hired two individuals at the Tillotson
jobsite several weeks later—on August 24 and 31, re-
spectively—but there is no evidence these positions were
available between July 30 and August 4, and the Re-
spondent has no practice of contacting past applicants
when positions open up. In addition, the employees
hired on August 24 and 31 each worked only 1 day at the
Tillotson site and then moved to other job sites39 where
they performed excavation work, which Anderson did

36 My colleagues say that my analysis of Anderson’s discharge under
FES improperly addresses an issue not properly before the Board, and
they rely on the fact that the Respondent has not argued that FES rather
than Wright Line should apply. I believe that the Board should apply
the applicable law to the facts of each case, regardless of whether the
parties have done so. See Kamen v. Kemper Financial Services, 500
U.S. 90, 99 (1991) (stating that “the court is not limited to the particular
legal theories advanced by the parties, but rather retains the independ-
ent power to identify and apply the proper construction of governing
law”).
37 Contrary to the majority, I find RHCG’s argument that Anderson
“stopped working” for RHCG “because of [his] own inaction” con-
sistent with its hiring practices. Other supervisors might have rehired
Anderson if he had contacted them when an appropriate position was
available.
38 Given the undisputed fact that Anderson never worked in the
demolition division, hiring records concerning that division would be
irrelevant to the General Counsel’s case.
39 See GC Exh. 9.
RHCG SAFETY CORP. 15
not perform when employed by RHCG.40 Further, alt-
hough the Respondent hired more than 20 employees in
the concrete division during the month of August, all of
them were hired at least 1 week after August 4, when
Anderson stopped seeking work at RHCG. In any event,
it is unclear whether these employees were hired to per-
form unskilled labor.41 Given the Respondent’s hiring
practices, evidence that the Respondent hired concrete
workers a week after Anderson stopped seeking work at
RHCG is insufficient to satisfy the General Counsel’s
burden to show that the Respondent had available work
for Anderson at the time he sought to be re-employed by
RHCG.42
Conclusion
For the reasons stated above, I respectfully dissent in
part and concur in part with my colleagues’ decision.
Dated, Washington, D.C. June 7, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.

40 Anderson testified that he previously worked excavation for an-
other company, but he did not do so for the Respondent (Tr. 75). And
there is no evidence that Supervisor Scherrer knew that Anderson could
perform excavation work or that excavation-related positions were
available between July 30 and August 4.
41 All of the new hires except two started working the last week of
August. The other two went to work at “51 Jay Street” performing
“Concrete Superstructure” starting August 10 and 13, respectively.
There is no evidence that “Concrete Superstructure” was the type of the
work Anderson had performed for RHCG.
42 My colleagues say that “the Respondent regularly returned em-
ployees to work after employees took time off for vacations and other
reasons, including even the need to serve jail time.” To the extent they
assume that the Respondent would return employees to work regardless
of whether it needed more workers at that time, I believe they fail to
consider Garofalo’s undisputed testimony that once employees leave,
their ability to return to work depends on whether there is an available
opening and sufficient work (Tr. 681). As discussed above, the record
shows that there was no available opening for Anderson at the time he
sought to return. Given the record evidence, there was no need for
Scherrer to affirmatively testify that there was no work for Anderson at
other concrete jobsites.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT coercively question you about your union ac-
tivities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the Union or any other labor organi-
zation.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s Order,
offer Claudio Anderson full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Claudio Anderson whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest, and WE WILL also make him
whole for reasonable search-for-work and interim employment
expenses, plus interest.
WE WILL compensate Claudio Anderson for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and WE WILL file with the Regional Director for Region 29,
within 21 days of the date the amount of backpay is fixed, ei-
ther by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of Claudio Anderson, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the dis-
charge will not be used against him in any way.
RHCGSAFETY CORP.
The Board’s decision can be found at
https://www.nlrb.gov/case/29–CA–161261 or by using the QR
code below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street S.E., Washington, D.C. 20570-0001, or by calling
(202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
Erin C. Shaeffer Esq., for the General Counsel.
David A. Tango Esq. and Aaron C. Carter Esq.,
for the Respondent.
Tamir Rosenblum Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case on various days in March and April 2016.
The petition in 29–RC–157827 was filed on August 12,
2015. Pursuant to a Stipulated Election Agreement approved
by the Regional Director on August 27, an election was con-
ducted on September 18, 2015. The agreed upon voting unit
was as follows:
Including all full-time and regular part-time demolition work-
ers.
Excluding all other employees, including concrete workers,
clerical and professional employees, guards and supervisors
as defined in the Act.
In the election, the challenges were sufficient in number to
affect the outcome. As a result, a hearing was conducted before
a hearing officer designated by the Regional Director and a
report was issued on November 13, 2015. The Regional Direc-
tor thereafter issued a Supplemental Decision on Challenged
Ballots wherein he ordered that 20 of the challenged ballots be
opened and counted and that 9 challenges be sustained. On
January 27, 2016, a revised tally of ballots was issued and this
showed that the challenged ballots were still sufficient in num-
ber to affect the outcome of the election.
In the meantime, both the Union and the Employer filed ob-
jections to the election.
The Union filed the unfair labor practice charge in 29–CA–
161261 on October 2, 2015. This charge was amended on No-
vember 30, 2015. On December 18, 2015, the Regional Direc-
tor issued a complaint in the unfair labor practice case and this
alleged in substance;
1. That by a text message on July 30, 2015, the Respondent
interrogated Claudio Anderson about his union activities.
2. That on or about July 30, 2015, the Respondent for dis-
criminatory reasons, terminated Claudio Anderson.
3. That in September 2015, the Respondent threatened em-
ployees with job loss if they selected the Union as their repre-
sentative.
4. That in September 2015, the Respondent threatened em-
ployees with a reduction in pay if they selected the Union as
their representative.
On February 17, 2016, the Regional Director issued a Sup-
plemental Decision on challenged ballots and Objections. At
the same time, he issued an Order consolidating 29–RC–
157827 with 29–CA–161261. In this report, the Regional Di-
rector overruled some of the objections and ordered that a hear-
ing be conducted as to others. Inasmuch as the Company, on
March 22, 2016, withdrew its objections, the remaining objec-
tions were litigated.
During the hearing, the Union and the Employer stipulated to
the eligibility of 22 of the challenged ballots. I thereupon or-
dered that those ballots be opened and counted. I also conclud-
ed that the ballot of Padilla should not be counted because the
evidence clearly showed that he had been terminated for non-
discriminatory reasons before the date of the election.
On March 21, the ballots of 22 individuals were opened and
counted. But this did not result in a determinative vote. There-
after, on March 22, the Union and the Employer stipulated that
an additional 4 challenged ballots should be opened. When
these ballots were opened and counted this resulted in the issu-
ance of a fourth talley of ballots that showed that 36 votes were
cast for the Union; 46 votes were cast against union representa-
tion; and that the number of undetermined challenged ballots
now numbered seven. Because the challenges were no longer
determinative and a majority of the valid votes were cast
against union representation, the employer withdrew its objec-
tions to the election.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is agreed by all parties and I find that RHCG Safety Corp.
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. There is also no dispute
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II ALLEGED UNFAIR LABOR PRACTICES
The employer is engaged in construction work and its em-
ployees generally work in the field instead of at a home facility.
It has two facilities, one at 83 Main Street, Bay Shore, New
York, and the other at 112 12th Street, Brooklyn, New York. At
times the Respondent has been referred to as Red Hook or Red
Hook Safety Corp. Basically, the company is divided into two
divisions, one doing demolition work and the other doing con-
crete work. Christopher Garofalo is the vice president of opera-
tions who oversees the demolition division. Tommy Frangi-
pane is the vice president of operations and he oversees the
concrete division. Each division utilizes supervisors who have
the authority to discharge employees and to effectively recom-
mend hiring.
The alleged discriminatee, Claudio Anderson, became an
employee in August 2014 and worked in the concrete division.
In this regard, it is noted that Union, which commenced its
organizing efforts in August 2015, focused its attention on the
demolition workers and not on the employees who worked in
the concrete division. During 2015, Anderson worked at a
number of construction sites under the supervision of David
Scherrer, who in turn worked under the direction of Frangipane.
The last jobsite that Anderson worked on was at 2301 Tillotson
Avenue, Bronx New York.
In July 2015, while working at the Tillotson site, Anderson
requested an extended period of time to visit his mother in Pan-
ama. This request was granted by Scherrer.
Soon thereafter, Anderson visited the offices of the Union
and among other things signed a union authorization card. Also
present at the Union’s office were some other employees of the
Respondent.
Before leaving for Panama, Anderson’s mother called to tell
RHCG SAFETY CORP. 17
him that he didn’t need to come after all. As a result, Anderson
and Scherrer communicated with each other via a series of text
messages about his return to work between July 30 and August
4, 2015.
With respect to these text messages, Anderson could not
produce his phone as he testified that about 5 days before this
trial started, he gave his phone to his sister in Panama. When
directed to get the phone back, the General Counsel and the
Charging Party’s counsel thereafter advised me that the phone’s
text messages had been deleted when Anderson’s sister regis-
tered the phone with her own carrier. They therefore conceded
that if the phone was examined, it would not show the text mes-
sages. This began to sound like the Tom Brady story. (The
quarterback for the Boston Patriots).
Nevertheless, phone records confirmed that a series of text
messages were transmitted between Anderson’s cell phone and
the cell phone of Scherrer between July 30 and August 4. This
contradicts the testimony of Scherrer who stated that he did not
send or receive text messages with Anderson during this period.
Anderson testified that some time after his discharge, he no-
tified the Union about his firing and was asked if he had any
proof of discrimination. He then took screen shots of the mes-
sages with Scherrer and these were ultimately transmitted by
the Union to the NLRB agent who was investigating this
charge.
Given the entirety of the evidence, including the fact that the
phone records show that the text messages were sent not only
on the same dates but at the same times listed on the messages,
I conclude that the text messages that were transmitted by An-
derson to the Union were authentic even though they were not
retained on his own phone.1 The messages were as follows:
From Anderson July 30, 8:01 am
Sorry David I thing today is Friday
From Anderson July 30, 4:11 pm
Hi david I can work tomorrow and Saturday?
From David July 30 8:36 pm
What’s going on with u?
U working for Redhook or u working in the union? 2
From David July 30 11:04 pm
U got to tell me what’s going on
From Anderson reply
I was there to talk you today but you left
From Anderson August 1 6:38 pm
Hi david I can star work Monday whit you?
From Anderson August 2 10:16 pm
Hi David I can star work tomorrow?
From David reply
No right now! I filled your spot come meet me tomorrow

1 The Respondent filed a petition to exclude these messages on the
ground that they were not complete. That may be so, but I am con-
vinced that they are authentic and therefore are admissible. According-
ly, I deny the Respondent’s petition
2 As previously noted, the Company is sometimes referred to as Red
Hook.
Not right now
From Anderson August 2, 10:25 p.m.
What time
From Anderson August 4 9:31 am
Hi david good morning what chris said?
On or about August 4, Anderson visited the Tillotson Ave-
nue jobsite and spoke to Scherrer who told him that there was
no work for him. According to the credited testimony of An-
derson, Scherrer then told him to speak with Nick Rodriguez
who is a nonsupervisory employee who is often used by the
company to convey messages to Spanish speaking employees.
When Anderson asked why he couldn’t work, Rodriguez told
him that Garofalo said that Anderson and some other guys
could not work for the Company anymore. Anderson reasona-
bly took this to mean that he was fired.
In my opinion, the evidence shows, contrary to the Respond-
ent’s defense, that Anderson was indeed discharged. The series
of text messages show that Scherrer was not putting him to
work and when Anderson visited the jobsite on August 4, he
was told that there was no work for him. The icing on the cake
was when Nick Rodriguez told him that the boss didn’t want
him working for the Company anymore. And even though Ro-
driguez cannot be considered to be a supervisor, it was shown
that he acts as a messenger between the company and the Span-
ish speaking employees and that he has been used to transmit
notifications of termination. The text messages also show that
the reason for Anderson’s discharge was the Company’s belief
that he was becoming involved with the Union.
Based on the above, I find that Anderson was discharged in
violation of Section 8(a)(1) and (3) of the Act. I also conclude
that by asking him if he was working for the Union or for the
company, the Respondent illegally interrogated him in violation
of Section 8(a)(1) of the Act.
As noted above, the Union filed its election petition on Au-
gust 12, 2015. In response, the company, with the advice of
counsel, held a series of meetings with employees before the
election. It also distributed a series of leaflets at the meetings.
These meetings, on three separate dates, were conducted by
Garofalo at the various jobsites. He was instructed to follow the
scripts that are essentially contained in the written documents
that were passed out to employees.3 When Garofalo needed to
communicate with Spanish speaking employees, he utilized the
translator services of an office employee named Gabriella.
Out of about 80 plus employees, the General Counsel pro-
duced two employees who testified about statements allegedly
made by Garofalo at two separate meetings.
Raymondo Garcia testified that Garofalo through Gabriella,
said that there was no work in Local 79 and that in Local 79
there were a lot of people who don’t work.
Lauro Padilla testified that Garofalo said that if the Company
won, he was going to give employees benefits and vacations
and that if Local 79 loses, they were going to reduce employee
salaries.

3 In this regard, there is no allegation that anything contained in
these leaflets violated the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Neither of these assertions was corroborated by any other
persons who attended these meetings.
As to the testimony of Garcia, Garofalo stated that in the
course of his speech he did mention that there were many
members of Local 79 who were not working whereas his em-
ployees were working. To me this is simply making a compari-
son between the work opportunities available to members of
Local 79 in the industry at large as compared to the amount of
work that the Respondent has made available to its own em-
ployees. I do not construe this as a threat of job loss. In addi-
tion, I credit Garofalo’s assertion that he neither made any
promise of benefits nor made any threats of benefit loss in rela-
tion to the election. I shall therefore recommend that these
allegations of the complaint be dismissed.
III THE OBJECTIONS
The evidence shows that the Respondent failed to provide an
adequate Excelsior list. And based on this failure and the fact
that the election was relatively close, I conclude that this objec-
tion should be sustained and that the election should be set
aside.
Pursuant to Excelsior Underwear, 156 NLRB 1236 (1996),
an employer in a Board conducted election, is required to file
with the Regional Director a list of the names and addresses of
all eligible voters within 7 days after either the approval of an
election agreement or the issuance of Decision and Direction of
Election.4 The purpose of this rule is to provide the petitioning
union an opportunity to communicate with eligible voters be-
fore the election. The failure to provide such a list or the sub-
mission of a substantially erroneous list is grounds for setting
aside the election. George Washington University, 346 NLRB
155 (2005); Sonfarrel, Inc., 188 NLRB 969 (1971); Ponce Tel-
evision Corp., 192 NLRB 115, 116 (1971).
The Stipulated Election Agreement required the Company to
submit to the Region for transmittal to the Union, a list of its
employees with their home addresses, phone numbers and e-
mail addresses. This was agreed to by the Employer. The list
that was submitted contained about 84 names and addresses.
However, 80 of the addresses were not correct and the Union
placed into evidence a group of 26 envelopes that were returned
by the Post Office. Also, a union representative testified that
when she and others went to make home visits, the employees
were not at the addresses on the Excelsior list.
Additionally, the list did not contain any phone numbers or
email addresses, notwithstanding evidence that the Company’s
supervisors maintained and utilized employee phone numbers
on their own cell phones.
Finally, the submitted list did not contain the names of any
former employees who worked for sufficient periods of time in
the prior 2 years to make them eligible voters under what is
called the Steiny-Daniels formula.5 Thus, it is probable that the

4 In NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), the Su-
preme Court upheld the validity of the Excelsior rule when it stated that
the “objections that the respondent raises to the requirement of disclo-
sure were clearly and correctly answered by the Board in its Excelsior
decision.”
5 In the Stipulated Election Agreement, the parties agreed that dem-
olition employees who have been employed for a total of 30 working
submitted Excelsior list omitted an entire category of employ-
ees who might have been eligible voters if they had been aware
of the election.
The Union also alleges other conduct in support of its posi-
tion that the election should be set aside. As I have concluded
that the election should be set aside based on the employer’s
failure to provide an accurate and adequate Excelsior list, I
need not deal with the other objections.
CONCLUSIONS OF LAW
1. By interrogating employees about their union activities,
the Respondent has violated Section 8(a)(1) of the Act.
2. By discharging Claudio Anderson because of his union ac-
tivities, the Respondent has violated Section 8(a)(1) & (3) of
the Act.
3. The unfair labor practices affect commerce within the
meaning of Sections 2(6) and (7) of the Act.
4. The Union’s objections regarding the failure to submit an
accurate and adequate Excelsior list are sustained.
5. The conduct found to be objectionable is sufficiently seri-
ous to set aside the election and to hold a new one.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having concluded that the Respondent unlawfully dis-
charged Claudio Anderson, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him. Backpay
shall be computed in accordance with F.W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
The Respondent shall also be required to expunge from its files
any and all references to the unlawful discharges and to notify
the employee in writing that this has been done and that the
unlawful discharges will not be used against him in any way.
The Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. The Respondent shall also compensate the employee
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year. Don Chavas, d/b/a Tortillas Dan Chavas, 361 NLRB No.
10 (2014).
In addition to the above, the General Counsel seeks a remedy
that would require the Respondent to reimburse Anderson for
any expenses incurred while seeking interim employment.
Although I can see the appropriateness of such a remedy, this is
not the current law, which treats such expenses as an offset to a
discriminatee’s interim earning. As the General Counsel is

days or more within 12 months immediately preceding the eligibility
date or who have been employed 45 days or more within the 24 months
immediately preceding the election eligibility date, would be eligible to
vote. Citing Daniel Construction Co., 133 NLRB 264, 267 (1961), as
modified by 167 NLRB 1078 (1967), and Steiny & Co., 308 NLRB
1323 (1992).
RHCG SAFETY CORP. 19
asking that the Board change its current view of the law, I leave
it to the Board to make any changes it sees fit.
Finally, as many of these employees speak Spanish as their
first language, the notice should be in English and Spanish.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, RHCG Safety Corp., Brooklyn, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their membership in
or activities on behalf of Construction & General Building La-
borers, Local 79 or any other labor organization.
(b) Interrogating employees about their union activities.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Claudio
Anderson, full reinstatement to his former job or, if that job no
longer exist, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Claudio
Anderson and within 3 days thereafter notify him in writing
that this has been done and that the discharge will not be used
against him in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Brooklyn and Bay Shore, New York, copies of the
attached notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 29, after
being signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to

6 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since August 1, 2015.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that Case 29–RC–157827 be re-
manded to the Regional Director and that the election held on
September 18, 2015, be set aside and that a new election be
scheduled.
Dated, Washington, D.C. May 18, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT discharge employees because of their member-
ship in or activities on behalf of Construction & General Build-
ing Laborers, Local 79 or any other labor organization.
WE WILL NOT interrogate employees about their union activi-
ties
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the rights guaranteed to them by
Section 7 of the Act.
RHCG SAFETY CORP.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/29–CA–161261 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20