should the election be ruled invalid (be sure to name the appropriate test for judging elections and apply that test to analyze the relevant facts)?

A week before a certification election, a WalShop store manager (who resides in Walnut) walks by a Rancho Cucamonga church in order to observe a union organizing meeting she read about on a bulletin board in the employee cafeteria. According to her rough count, approximately a hundred of the 250 employees at the store were attending. She looks for familiar faces from the sidewalk outside (and makes notes of what she observes) but does not attempt to make contact with anyone going inside the church. After several nervous employees called the manager’s presence out to the union supporter, Arturo Cruz, Cruz comes outside and orders the manager to leave. After a brief argument, the manager departs but not before wagging her finger at the church and shouting “Unions will be the death of us all!” The union loses the election by a close margin (120 in favor of certification, 130 against). Shortly thereafter, Cruz is reassigned to the graveyard shift, a move he adamantly opposes. The union files two unfair labor charges against WalShop: (1) claiming that Cruz was reassigned to retaliate for his union activities; and (2) claiming that the supervisor’s presence and words constituted a “threat of reprisal” and thereby invalidated the election. In testimony before the Administrative Law Judge (ALJ), the supervisor states she was merely in the neighborhood and walked by out of curiosity. Management tells the ALJ that it neither ordered nor was aware of the supervisor’s action at the time it occurred. A regional vice president admitted, however, that he received a memo from the manager the day after the meeting describing what she had seen (including the names of some prominent employees in attendance) but claims to have taken no action based on the memo. Also, the vice president admitted that Cruz was considered a “troublesome” employee but asserted that he was needed on the graveyard shift because of his extensive knowledge of the store. On the first unfair practice claim, did WalShop commit an unfair labor practice by reassigning Cruz (specify the section of the NLRA that the union alleges was violated and be sure to name the appropriate test the NLRB uses to evaluate discharge or discipline cases as well as apply all of the elements of that test to analyze the relevant facts)? On the second unfair practice claim, without regard to whether an unfair labor practice occurred, should the election be ruled invalid (be sure to name the appropriate test for judging elections and apply that test to analyze the relevant facts)? Be sure to explain your answers to both subparts of this essay.

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