UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________

Nos. 22-3301 and 22-3426 _______________________

NEW CONCEPTS FOR LIVING, INC.,

v. NATIONAL LABOR RELATIONS BOARD

New Concepts for Living, Inc. Petitioner in No. 22-3301

National Labor Relations Board Petitioner in No. 22-3426

__________________________ On Petition for Review from a decision of the National Labor Relations Board NLRB Nos: 1 : 22-CA-187407; 1 : 22-CA-195819; 1 : 22-CA-197088; 1 : 22-CA-205843; 1 : 22-CA-208390 __________________________ Argued September 28, 2023 Before: KRAUSE, AMBRO, and SMITH, Circuit Judges

(Filed: March 4, 2024) Maurice Baskin [ARGUED] Emily Carapella Littler Mendelson 815 Connecticut Avenue NW Suite 400 Washington, DC 20006 Counsel for New Concepts for Living, Inc. Ruth E. Burdick Elizabeth A. Heaney Joel Heller [ARGUED] National Labor Relations Board Appellate and Supreme Court Litigation Branch 1015 Half Street SE Washington, DC 20570 Counsel for the National Labor Relations Board

________________________

OPINION OF THE COURT __________________________

2 SMITH, Circuit Judge.

New Concepts for Living, Inc. (“New Concepts”) seeks review of an order of the National Labor Relations Board (“NLRB” or the “Board”) determining that New Concepts engaged in unfair labor practices by pushing to decertify its employees’ union. An administrative law judge (“ALJ”) dismissed all eight charges against New Concepts. Although the Board affirmed the ALJ’s dismissal of three of those charges, the Board reversed his dismissal of five others by a two-to-one vote. New Concepts petitioned for review, and the NLRB cross-petitioned for enforcement. After a thorough review of the record, we hold that the Board majority’s five reversals are not supported by substantial evidence. We will therefore grant New Concepts’ petition for review and deny the NLRB’s cross-application for enforcement. I. Factual Background

New Concepts is a nonprofit corporation that provides services for people with disabilities at several facilities located in northern New Jersey. In 2007, the Communications Workers of America, Local 1040 (the “Union”), began representing a bargaining unit of approximately 90 New Concepts employees. The most recent collective bargaining agreement (“CBA”) between New Concepts and the Union (“the parties”) expired on June 30, 2014. Thereafter, for nearly two years, a series of Union representatives failed to request that New Concepts commence negotiations aimed at reaching a successor agreement. The result of that inactivity was that members were, understandably, dissatisfied with their Union.

3 In August 2016, the parties began negotiations to reach a successor agreement. Around the same time, momentum was building to decertify the Union. Specifically, New Concepts employee Andre Marshall and several other employees gathered signatures from coworkers on a petition in support of decertification. Although the negotiations that had begun in August did not result in a new CBA, the parties did agree to meet again in late October 2016.

Meanwhile, New Concepts CEO Steve Setteducati spoke at a series of staff meetings in October and answered questions posed by employees. In the wake of those meetings, Marshall filed a decertification petition with the NLRB. New Concepts then informed the Union that it would suspend bargaining, reasoning that the petition gave rise to a good faith doubt that the Union was actually supported by a majority of the unit. The NLRB scheduled a decertification vote which, in turn, led the Union to file an unfair labor practice charge. Filing of the charge blocked further processing of the pe