Independence Residences, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 724 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 153
724
Independence Residences, Inc. and Union of Nee-
dletrades Industrial and Textile Employees
(UNITE) AFL–CIO. Case 29–RC–10030
August 27, 2010
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER,
BECKER, PEARCE, AND HAYES
The National Labor Relations Board has considered
objections to a mail ballot election held between June 2
and 16, 2003, and the administrative law judge’s report
concerning their disposition. The election was conducted
pursuant to a Stipulated Election Agreement. The tally
of ballots shows 68 for and 32 against the Petitioner,
with 7 challenged ballots, an insufficient number to af-
fect the results.
The questions presented by the Employer’s objections
to the election are: (1) whether New York State Labor
Law Section 211-a, which limits employers’ use of state
funds to encourage or discourage employees from par-
ticipating in union organization, is preempted by Federal
labor law; (2) whether, if Section 211-a is preempted, its
mere existence is, per se, grounds for overturning the
election results; and (3) whether, even if the existence of
Section 211-a was not alone grounds for overturning the
election results, the Employer met its burden of proving
that the impact of Section 211-a on its ability to commu-
nicate with employees during the election campaign war-
rants setting aside the election results.
The Board has reviewed the record in light of the ex-
ceptions and briefs,1 has adopted the judge’s findings and
recommendations to the extent discussed below, and
finds that a certification of representative should be is-
sued.
I. FACTS
A. Section 211-a and Related Litigation
In late 2002, the New York State legislature amended
New York Labor Law Section 211-a. In relevant part,
the amended law prohibits employers from using state
funds2 for three specific purposes: (1) training managers,

1 The judge was sitting as a hearing officer in this representation
proceeding. The Employer has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We have
carefully examined the record and find no basis for reversing the find-
ings.
2 We use the term “state funds” as a shorthand. The law applies only
to “monies appropriated by the state.”
supervisors, or other administrative employees regarding
methods to encourage or discourage union organization
or participation in a union organizing drive; (2) hiring
attorneys, consultants, or contractors to encourage or
discourage union organization or participation in a union
organizing drive; and (3) paying employees whose prin-
cipal job duties are to engage in such activity.3 The law
requires an employer which receives state funds and ex-
pends funds for any of these purposes to maintain finan-
cial records sufficient to show that state funds were not
spent for prohibited purposes. It also authorizes the New
York State Attorney General to file a civil suit to enjoin
prohibited expenditures, to recover state funds wrong-
fully spent, and to seek civil penalties of as much as three
times the amount wrongfully spent. Finally, Section
211-a directs the New York State Commissioner of La-
bor to promulgate regulations detailing financial record-
keeping requirements and to provide advice and guidance
about contractual and administrative enforcement meas-
ures.
On April 3, 2003, a coalition of New York health care
employer associations representing over 500 employers
brought suit in a Federal district court to enjoin imple-
mentation of Section 211-a on the grounds, inter alia,
that it was preempted by the National Labor Relations
Act. The plaintiffs advanced both of the well-recognized
theories of labor law preemption, named after the Su-
preme Court cases in which the theories were adopted.
Under the Garmon4 theory of preemption, a state or local
law is preempted if it regulates conduct that the Act “pro-
tects, prohibits, or arguably protects or prohibits.”5 Un-

3 Sec. 211-a.2 states that:
. . . no monies appropriated by the state for any purpose shall be used
or made available to employers to: (a) train managers, supervisors or
other administrative personnel regarding methods to encourage or dis-
courage union organization, or to encourage or discourage an em-
ployee from participating in a union organizing drive; (b) hire or pay
attorneys, consultants or other contractors to encourage or discourage
union organization, or to encourage or discourage an employee from
participating in a union organizing drive; or (c) hire employees or pay
the salary and other compensation of employees whose principal job
duties are to encourage or discourage union organization, or to en-
courage or discourage an employee from participating in a union or-
ganizing drive.
We note that the antecedent par. 1 of Sec. 211-a suggests a broader
proscription of employers’ use of state funds to encourage or discour-
age unionization. However, the New York State Attorney General has
consistently interpreted the statute as prohibiting only the three specific
expenditures identified above in par. 2. See Br. for Appellant at 4–5
and Reply Br. for Appellant at 14, Healthcare Assn. of New York State,
Inc. v. Pataki, 471 F.3d 87 (2d Cir. 2006).
4 San Diego Building Trades Council v. Garmon, 359 U.S. 236
(1959).
5 Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 286
(1986).
INDEPENDENCE RESIDENCES, INC. 725
der the Machinists6 theory of preemption, a state or local
law is preempted if it regulates conduct that Congress
intended under the Act to “be unregulated because left
‘to be controlled by the free play of economic forces.’”7
A year prior to the initiation of the legal challenge to
Section 211-a, a group of employer associations initiated
a separate action in Federal district court in California
seeking to enjoin enforcement of a parallel, although not
identical, California law, Assembly Bill 1889, on pre-
emption and other grounds. The United States District
Court for the Central District of California granted partial
summary judgment in favor of the plaintiffs, holding that
certain provisions of AB 1889 were preempted under the
Machinists theory.8 A panel of the United States Court
of Appeals for the Ninth Circuit twice affirmed the dis-
trict court’s judgment.9 However, upon rehearing en
banc, the circuit court held that the contested provisions
of AB 1889 were not preempted.10 Thereafter, the Su-
preme Court granted certiorari and reversed the Ninth
Circuit’s decision. See Chamber of Commerce v. Brown,
128 S.Ct. 2408 (2008). The Court held that the statutory
provisions at issue were “pre-empted under Machinists
because they regulate[d] within ‘a zone protected and
reserved for market freedom.’” Brown, supra at 2412
(citations omitted).
In May 2005, relying heavily on the Ninth Circuit
panel decision in the California litigation, a Federal dis-
trict court judge in New York found Section 211-a pre-
empted by the Act under Machinists and enjoined im-
plementation and enforcement of the New York law.11
Subsequently, the United States Court of Appeals for the
Second Circuit reversed the district court’s decision and
remanded the case for factual findings which the appel-
late court deemed necessary before it could determine
whether either Machinists or Garmon preemption ap-
plied.12 Upon remand, the case was held in abeyance

6 Machinists Local 76 v. Wisconsin Employment Relations Commis-
sion, 427 U.S. 132 (1976).
7 Machinists, 427 U.S. at 140, quoting NLRB v. Nash-Finch Co., 404
U.S. 138, 144 (1971).
8 Chamber of Commerce v. Lockyer, 225 F.Supp.2d 1199 (C.D. Cal.
2002) (Lockyer I).
9 Chamber of Commerce v. Lockyer, 364 F.3d 1154 (9th Cir. 2004)
(Lockyer II), withdrawn and rehearing granted 408 F.3d 590 (9th Cir.
2005), reaffirmed 422 F.3d 973 (9th Cir. 2005) (Lockyer III), rehearing
en banc granted 435 F.3d 999 (9th Cir. 2006), and opinion withdrawn
437 F.3d 890 (9th Cir. 2006).
10 Chamber of Commerce v. Lockyer, 463 F.3d 1076 (9th 2006)
(Lockyer IV).
11 Healthcare Assn. of New York State, Inc. v. Pataki, 388 F.Supp.2d
6 (N.D. New York 2005) (Pataki I). We note that the record before the
district court included as exhibits documents from the representation
case before us. However, the judge did not expressly rely on those
exhibits in reaching his decision.
12 471 F.3d 87 (2d Cir. 2006) (Pataki II).
pending the Supreme Court’s decision in Brown. After
that decision issued, the district court requested that the
parties brief the impact of Brown. The New York litiga-
tion is still pending in the district court today. The New
York State Commissioner of Labor has refrained from
issuing regulations under Section 211-a.13 In addition,
the Employer has not cited any evidence, and there ap-
pears to be none, that the New York State Attorney Gen-
eral has filed any lawsuits to enforce the law.
B. Procedural History of this Case
On April 24, 2003—after Section 211-a had been en-
acted and after litigation challenging its validity had been
brought—the Petitioner, Union of Needletrades Indus-
trial and Textile Employees (UNITE), AFL–CIO filed its
representation petition with the Board. On May 9, the
Regional Director for Region 29 approved the parties’
Stipulated Election Agreement providing for a mail bal-
lot election among employees in the specified appropri-
ate bargaining unit. On May 16, after a change in coun-
sel, the Employer requested that the Regional Director
vacate the Stipulated Election Agreement and stay fur-
ther proceedings in this case pending the outcome of the
challenge to Section 211-a in Federal court. The Re-
gional Director denied this request. The Employer then
filed a request for review with the Board. On June 11,
the Board denied the request for review, stating that “the
Employer may seek to raise, in any post-election pro-
ceedings, questions regarding the impact, if any, of N.Y.
Labor Law Section 211-a.”
As previously stated, in the election, a substantial ma-
jority of employees voted for the Petitioner, and the Em-
ployer subsequently filed timely objections seeking to set
aside the election results because of the alleged impact of
Section 211-a on its ability to communicate with bargain-
ing unit employees. The election objections case was
consolidated for hearing with unfair labor practice cases
involving allegations that the Employer committed sev-
eral violations of Section 8(a)(1) and (3) of the Act be-
fore and after the election. At the beginning of the hear-
ing, the judge denied the Employer’s motion to sever the
representation case from the unfair labor practice case.
However, at the close of hearing, the judge stated that he
would sever the cases for decision in hopes of expediting
final resolution of the representation case.14
The judge issued the attached decision in the represen-
tation case first, recommending that the Employer’s ob-

13 See id. at 91. The judge in the present case made the same find-
ing.
14 We find no merit in the Employer’s argument that the judge com-
mitted prejudicial error by denying the Employer’s motion to sever the
cases for hearing purposes while later severing them for decisional
purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
jections be overruled and that the Petitioner be certified.
In the subsequent unfair labor practice case decision,15
the judge found that the Employer violated Section
8(a)(1) of the Act during the critical preelection period
by interrogating employees about union activities, solic-
iting grievances with an implied promise to remedy
them, threatening to end its focus group program if em-
ployees chose union representation, and granting and
timing the implementation of wage increases in order to
influence employees’ support for the Petitioner. The
Employer did not file exceptions to this decision. Con-
sequently, the Board adopted the decision in an unpub-
lished Order on December 16, 2004.16 The judge’s find-
ings of fact and conclusions of law in the unfair labor
practice case are therefore undisputed, and we will refer
to them where relevant to this proceeding.
C. The Election Campaign
The Employer is a private nonprofit entity that pro-
vides residential and day services to individuals with
developmental disabilities. In 2002, private donations
and interest income accounted for approximately
$130,000 of its annual $8 million operating budget. All
other funds came from Federal, state, or local govern-
ment sources. The New York State Office of Mental
Retardation and Developmental Disabilities sets operat-
ing standards for the Employer’s facilities and enforces
those standards through periodic home visits and audits
of detailed financial reports that the Employer is required
to maintain.
In April 2003,17 the Petitioner initiated an organizing
campaign among the Employer’s employees. It formed
an employee organizing committee, visited employees at
their homes, and began to ask employees to sign cards
authorizing the Petitioner to represent them. Shortly
before filing its election petition on April 23, the Peti-
tioner sent a 1-page document to employees, signed by
12 employee-members of the organizing committee,
claiming that a majority of employees had signed au-
thorization cards and stating that the next step would be
to file for an election. The document then read that “we
expect everyone to vote yes, and we expect management
to remain neutral and to respect our rights and the law
during the organizing campaign.” Petitioner’s coordina-
tor of organizing, Allison Duwe, credibly testified that
the statement about employer neutrality typically appears
in union leaflets and was not meant to refer to Section
211-a.

15 Independence Residences, JD(NY)-43-04 (Sept. 30, 2004) (avail-
able on the NLRB website at www.nlrb.gov).
16 See Board’s Rules and Regulations §102.48(a), citing Act §10(c).
17 All subsequent dates are in 2003, unless otherwise indicated.
The Petitioner continued to campaign throughout the
preelection period through a combination of leaflets,
home visits, and employee meetings. There is no evi-
dence that it ever initiated discussion of Section 211-a.
When some employees asked Duwe about a statement in
an Employer letter that it was required by law to refrain
from encouraging or discouraging union organization
and “must remain neutral whether or not that is how we
really feel,” Duwe told them that the Employer did not
have to remain neutral and that it could express its opin-
ion and provide information to employees.
The Employer also actively campaigned prior to the
election. On the day the petition was filed, Executive
Director Raymond De Natale sent a memorandum to all
employees announcing that salary adjustments and merit
increases, retroactive to October 1, 2002, were approved
and being processed. On May 2, 1 month before the
election, the Employer granted employees an across-the-
board wage increase of 15 cents an hour, plus individual
merit increases of varying amounts. As found by the
judge in the companion unfair labor practice case, the
Employer unlawfully granted and timed the implementa-
tion of these increases in order to influence employee
support for the Petitioner.
During the campaign, the Employer also distributed
numerous flyers and sent letters to employees: (1) cau-
tioning that voting for the Petitioner was not in the em-
ployees’ best interests; (2) questioning whether the Peti-
tioner, which had historically represented garment work-
ers, was the right union to represent health care employ-
ees; (3) challenging the Petitioner’s claims about initia-
tion fees and dues, and stating that the cost of dues could
exceed any wage gains secured in negotiations; (4) pub-
licizing the Board’s finding that the Petitioner violated
the Act in a case involving another employer; (5) empha-
sizing that contract negotiations could take a long time,
might result in a strike, and were not guaranteed to pro-
duce a contract with improved wages and benefits; (6)
accusing the Petitioner of making false promises; (7)
stating that employees would lose their voice if they
voted for the Petitioner to represent them; (8) and urging
all employees to vote in the election because failure to
vote would effectively be a vote for the Petitioner.18
Executive Director De Natale and other management
officials repeated these messages during two meetings
employees were required to attend during working hours
on May 28. In addition, as found by the judge in his un-
fair labor practice decision, Director of Human Re-
sources Heather Barker unlawfully threatened during one

18 Except where specifically noted, none of the Employer’s cam-
paign activities have been found to have violated the Act.
INDEPENDENCE RESIDENCES, INC. 727
meeting to end the Employer’s focus group program
which permitted employees and management to meet and
discuss health insurance issues, if the Petitioner won the
election.
Management officials also discussed the Petitioner in
individual and small group meetings with employees.
The Employer violated Section 8(a)(1) in the course of
three of these meetings. In late April and again on May
1, Program Manager Harold Burchett unlawfully asked
employees if anyone in their workplace spoke with the
Petitioner. On the latter occasion, Burchett told employ-
ees that he wanted to know because he was going to a
manager’s meeting at the main office. On June 1, Hu-
man Resources Director Barker and Chief Financial Of-
ficer Paul Chalita engaged in unlawful solicitation of
grievances with an implicit promise to remedy them.
Barker invited employees to discuss problems with their
health benefits and asked what the Employer could do to
improve the satisfaction of the staff. After several em-
ployees complained about different aspects of their
health insurance coverage, Chalita stated that the Em-
ployer would look into improving health benefits and
“we’ll see what we can do about it.”
It is undisputed that the Employer never expressly
urged employees to vote “No” in its election campaign
communications.19 Labor consultant Steve Beyer, an
Employer witness at the hearing, testified that the Em-
ployer’s campaign was “neutral” and that a “nonneutral”
campaign would have included the Employer telling the
employees to vote “No.” Executive Director De Natale
similarly testified that he concluded from reading Section
211-a that the Employer was required to remain “neutral”
during the election campaign. He issued a May 19
memorandum to managers and supervisors stating that
the law “prohibits organizations like ours from encourag-
ing or discouraging union membership.” De Natale’s
memorandum continued by stating that since New York
law prohibited management from communicating to em-
ployees its opposition to unionism, “we will have to sim-
ply present the facts in a straightforward, neutral manner
in order to educate our employees about unionism and
rely upon their good judgment to reject union representa-
tion because they have come to the conclusion, after con-
sidering as much information as we can give them, that
union representation is not in their best interests.”
De Natale testified that the Employer ran its campaign
in accord with the instructions of his May 19 memoran-
dum, limiting communications with employees to the
dissemination of facts which the Employer hoped would

19 We note, however, that at the mandatory meetings, Executive Di-
rector De Natale urged all employees to vote on the grounds that not
voting was equivalent to voting yes.
enable the employees to come to their own conclusion
that voting for the Union was not in their best interests.
According to De Natale, the Employer’s campaign would
have been more “aggressive” and “stronger” in the ab-
sence of Section 211-a, but he provided no specific ex-
amples of what the Employer would have done differ-
ently other than explicitly to advocate that employees
vote “No.” He also said that he decided not to use the
Employer’s nonstate funds to campaign against the Peti-
tioner because of the accounting difficulties involved in
insuring that only those funds were used to support par-
ticular campaign activities.
II. THE JUDGE’S RECOMMENDED DECISION
ON OBJECTIONS
In ruling on the merits of the Employer’s objections,
the judge assumed, without deciding, that Section 211-a
bars the use of public funds for any conduct that encour-
ages or discourages union organization and that the New
York law is preempted by the Act, as the Employer con-
tends.20 The judge nevertheless found that the Employer
failed to establish that the law’s existence and its alleged
impact on the Employer’s ability to campaign warranted
setting aside the election. He rejected the argument that
the Board itself was somehow complicit in enforcing
Section 211-a because it refused to vacate the Stipulated
Election Agreement and to stay the election. He also
found no evidence that the Petitioner enforced or other-
wise relied on Section 211-a during the critical period
preceding the election.
The judge reviewed a variety of Board standards ap-
plicable to allegations of objectionable election conduct
by both parties (i.e., a union petitioner and the em-
ployer)21 and third parties,22 and found that, under any
arguably applicable standard, the Employer failed to
meet its burden of proving that Section 211-a’s impact
on the election warranted setting aside its results. He
rejected the Employer’s argument that a finding that the
law was preempted “automatically translates to a finding
that the election should be set aside.” As for evidence of

20 The judge speculated that it was “highly likely” that the Board
would consider Sec. 211-a to be preempted.
21 See, e.g., Cambridge Tool & Mfg. Co., 316 NLRB 716, 716
(2004) (Board applies objective standard under which conduct by party
is found objectionable if it has “tendency to interfere with the employ-
ees’ freedom of choice”).
22 See, e.g., Westwood Horizons Hotel, 270 NLRB 802, 803 (1984)
(third-party threats are objectionable when they are “so aggravated as to
create a general atmosphere of fear and reprisal rendering a free elec-
tion impossible”), and Chipman Union, Inc., 316 NLRB 107, 107
(1995) (third-party statements of support for union representation by
individual government officials are objectionable only if employees
could reasonably have confused such statements as endorsements by
the Board).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
Section 211-a’s actual impact on the election, the judge
noted that Section 211-a simply prohibited employers
from using public funds to discourage or encourage un-
ion organization. The Employer was free to campaign
against the Petitioner with its own funds. Instead, in the
judge’s view, the Employer chose a “middle ground, and
made a ‘half hearted’ attempt to remain neutral, by cam-
paigning vigorously against the [Petitioner], but not ex-
pressly urging employees to vote ‘No.’” Given such
campaigning, the judge found that the Employer “used
all the rights available to it to campaign against the [Peti-
tioner].” He rejected the Employer’s argument that
“there is a significant difference between telling employ-
ees that voting for the [Petitioner] is not in their best in-
terest, and telling them to vote ‘No.’” In conclusion,
noting the Petitioner’s substantial margin of victory in
the election, the judge determined that the Employer
failed to meet its burden of proving that Section 211-a
had an objectionable impact on the free choice of em-
ployees in the election. He therefore recommended over-
ruling the Employer’s objections.
III. DISCUSSION
We have carefully considered the parties’ competing
arguments concerning whether Section 211-a so inter-
fered with the election in this case that the results must
be set aside. In considering that question, we have been
mindful of the Supreme Court’s own reluctance to em-
brace hard-and-fast rules of law that

would show indifference to the responsibilities im-
posed by the Act primarily on the Board to appraise
carefully the interests of both sides of any labor-
management controversy in the diverse circumstances
of particular cases and in light of the Board’s special
understanding of these industrial situations.

NLRB v. Steelworkers (NuTone), 357 U.S. 357, 362–363
(1958). We are guided by those statutory responsibilities in
this case.
Indeed, we emphasize that we are deciding this case
alone and only so much of it as is necessary to resolve
the Employer’s objections. In order to do so, we assume
for purposes of our analysis of this case that Section
211-a is preempted by the Act;23 we leave the ultimate
resolution of that issue to the Federal court litigation.
Even under that assumption, however, we decline to set
aside the election. The question before us is whether the
“surrounding conditions enable[d] employees to register
a free and untrammeled choice for or against a bargain-

23 Given our assumption that Sec. 211-a is preempted, the dissent’s
repeated statement that we give “deference” to the state law is without
foundation.
ing representative.” General Shoe Corp., 77 NLRB 124,
126 (1948). In the circumstances presented here, the
Employer has failed to demonstrate that Section 211-a
had a sufficient impact on eligible employees to warrant
setting aside the election results. In particular, Section
211-a does not prohibit campaign activity of any kind,
but merely limits the use of state funds to support certain
specified activities; it does not affect campaign activity
funded from other sources in any way. Moreover, the
record establishes that the Employer did engage in vigor-
ous campaign activity in opposition to the Petitioner and
that the election results were not close. Under these cir-
cumstances, and for the reasons explained below, we
conclude that the Employer has failed to sustain its ob-
jections.
A. The Proper Analytical Framework
At the outset, we note the unusual nature of the Em-
ployer’s objections. They are not based on alleged con-
duct of the petitioning Union or of alleged union agents.
Indeed, the judge found, and we agree, that there is no
basis for holding the Petitioner responsible for the exis-
tence of Section 211-a and that Petitioner took no action
to enforce the law. Nor are objections based on alleged
conduct of employees or agents of the Board. Rather, the
Employer’s objections are based solely on a state law
duly adopted by the New York legislature and signed by
the Governor. That law, moreover, is not specifically or
exclusively directed at any party to this election. It is a
law of general applicability.
Thus, it would appear that this is a third-party case,24
although certainly not a typical one. The conduct typi-
cally at issue in third-party cases is discrete conduct re-
lated to the specific election at issue. See Westwood Ho-
rizons Hotel, 270 NLRB 802 (1984) (setting aside an
election based on threats of physical harm made by non-
agent, prounion employees). That has been true even
when the third party was a public official. See Saint-
Gobain Abrasives, Inc., 337 NLRB 82 (2001) (rejecting
an employer’s objection based on a Congressman’s
statements of support and campaigning for the union);
Great Atlantic & Pacific Tea Co., 120 NLRB 765 (1958)
(setting aside an election where the local police arrested
the union’s lead organizer at the preelection conference).
In objections cases based on third-party conduct, we
will not overturn election results unless the third party’s
conduct was “so aggravated as to create a general atmos-
phere of fear and reprisal rendering a free election im-
possible.” Westwood Horizons Hotel, supra at 803. In

24 The Employer’s objections characterize the objectionable conduct
as that of a “third party”—either the State of New York or of its De-
partment of Labor or Attorney General.
INDEPENDENCE RESIDENCES, INC. 729
third-party cases not involving threats, the Board has
rephrased the standard, as in Hollingsworth Mgt. Service,
342 NLRB 556, 558 (2004): “In evaluating electioneer-
ing by nonparties, the standard is ‘whether the conduct at
issue so substantially impaired the employees’ exercise
of free choice as to require that the election be set aside.’
Rheem Mfg. Co., 309 NLRB 459, 463 (1992); Southeast-
ern Mills, 227 NLRB 57, 58 (1976).” The Board has
applied this third-party standard to objections based on
the actions of public officials, even when those actions
are based on a state statute clearly preempted by Federal
labor law. See Great Atlantic & Pacific Tea, supra, 120
NLRB at 767 (applying third-party standard to arrest of
union’s principal organizer just prior to election based on
statute that “required inter alia, the obtaining of a permit
before soliciting memberships . . . for any union which
requires payment of dues or makes assessments against
its members”);25 cf. Hill v. Florida, 325 U.S. 538 (1945)
(holding state law requiring licensing of union agents
before union could function as collective-bargaining rep-
resentative preempted). This heightened standard for
objections based on third-party conduct reflects a recog-
nition of the unfairness of saddling parties with the con-
sequences of conduct over which they had no control.26

25 The dissent seeks to distinguish this binding precedent on the
grounds that the Board did not “engage in a preemption analysis” in the
prior case. But that is exactly the point. The police officers’ conduct
was clearly preempted, yet the Board did not in any way rely on that
legal conclusion, but rather applied the traditional third-party standard
with its focus on the impact of the third party’s action on voters.
26 The dissent incorrectly suggests the application of the third-party
standard rests on a finding that the third party, such as an individual
employee, poses less of a threat to voters than their employer or poten-
tial union representative, and the dissent suggests that that finding
cannot be made when the third party is a state. But the Board has never
engaged in such analysis before applying the third-party standard,
which has been consistently applied to all varieties of third parties, and
the standard rests on an additional and independent policy rationale. As
the Board explained in Orleans Mfg. Co., 120 NLRB 630, 633–634
(1958),
[W]ere the Board to give the same weight to conduct by third persons
as to conduct attributable to the parties, the possibility of obtaining
quick and conclusive election results would be substantially dimin-
ished. The employer and the union are deterred from election mis-
conduct by the unfair labor practice provisions of the Act and by the
trouble and expense which repeated elections impose upon them. The
absence of similar deterrents against third persons who wish to fore-
stall a conclusive election may make them more prone to engage in
conduct calculated to prevent such a result.
See also NLRB v. Staub Cleaners, Inc., 418 F.2d 1086 (2d Cir. 1969)
(“[W]here one of the parties is directly at fault, the most effective deter-
rent to future misconduct is to deny that party what it sought to gain
improperly. But, when . . . third parties are responsible for the improper
comments, they have little concern with the expense and annoyance
incurred by repeating the election, and the NLRB order in such a case
carries with it no deterrent effect.”) Moreover, the Board has applied
the longstanding third-party standard not simply to individual employ-
The Board’s express concern that applying the same
standard used for objections based on parties’ conduct to
that of third parties would “substantially diminish[]” its
ability to fulfill the statutory mandate to obtain “quick
and conclusive election results” fully applies here, where
the objections are based on a generally applicable state
law which was enacted 8 years ago and the validity of
which has yet to be finally and effectively adjudicated.27
An objection based on a duly adopted state law of gen-
eral applicability presents us with unique questions of
federalism and our authority to effectively rule on pre-
emption claims; questions that must be considered in
order to determine how best to insure employee free
choice. The essence of the Employer’s objections is that
Section 211-a prevented it from campaigning to the full
extent permitted by Federal labor law. Board-conducted
elections, however, always take place against a back-
ground of state laws that significantly influence the abil-
ity of employers, unions, and employees to communicate
their views on organization. For example, state trespass
laws typically permit employers to exclude union organ-
izers from the workplace. See Lechmere, Inc. v. NLRB,
502 U.S. 527 (1992); NLRB v. Babcock & Wilcox Co.,
351 U.S. 105 (1956). As a result, employers frequently
enjoy exclusive access to employees in the workplace,
while unions typically must make do with alternative
channels of communication, even if they are “cumber-
some or less-than-ideally effective.” Lechmere, supra,
502 U.S. at 539. Similarly, an employer’s right to con-
trol its property may permit it to impose—but not abide
by itself—time, place, and manner restrictions on em-
ployees’ workplace organizing. See NLRB v. Steelwork-
ers (NuTone), 357 U.S. 357 (1958). State defamation
laws, too, may inhibit the electioneering activities of em-
ployers, unions, and employees, despite the preemptive
sweep of Federal labor law. See Linn v. United Plant
Guards Workers of America Local 114, 383 U.S. 53
(1966) (permitting state lawsuits alleging defamation in
the context of union organizing campaigns). Such laws
may constrain campaign activity even if the laws are later
held to be invalid as preempted, under the Constitution,
or for other reasons. See, e.g., Service Employees Local

ees, but, as we pointed out above, to third parties that undoubtedly may
exercise considerable coercive power such as elected officials and the
police. The Board has never applied a per se or a virtually per se rule
of the type suggested in the dissent to such governmental, or any other
type of, third-party conduct.
27 The dissent repeatedly suggests, incorrectly, that we adopt a new
standard in this case. In fact, we apply the well-established third-party
standard and merely emphasize that the policy foundations of that
standard fully apply here. It is the dissent that would apply a novel,
virtually per se standard in this case that has never before been applied
to third-party conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
5 v. City of Houston, 595 F.3d 588 (5th Cir. 2010) (strik-
ing down portions of City’s law governing parades and
rallies under the First Amendment).
The Board, however, has never set aside an election
merely because such a law influenced or limited parties’
campaign activities in the absence of any party affirma-
tively exercising rights under or enforcing the law. The
Supreme Court’s approach to employers’ exercise of
their state law property rights reinforces our conclusion
that the third-party standard applies here. The Court has
held that an employer’s exercise of those rights does not
violate the Act unless it creates a serious obstacle to the
union’s ability to communicate with employees. See
Lechmere, supra, 502 U.S. at 539, 541; see also Sears,
Roebuck & Co. v. San Diego District Council of Carpen-
ters, 436 U.S. 180, 205 (1978) (“that the burden imposed
on the union is a heavy one is evidenced by the fact that
the balance struck by the Board and the courts under the
Babcock accommodation principle has rarely been in
favor of trespassory organizational activity.”). Here, the
State of New York did not vest rights in property owners,
but, analogously, through a duly adopted state law of
general applicability, Section 211-a, restricted their rights
to the limited extent that their property is revenue “ap-
propriated by the state for any purpose.” Accordingly,
we employ a parallel analysis in this case by applying the
traditional third-party standard.28
B. Even Assuming it is Preempted, Section 211-a is Not
Per Se Grounds for Overturning the Election Results
The Employer implicitly suggests that the New York
law is different from those discussed above because it is
preempted by the Act. Indeed, the Employer argues that
the election “must be set aside because § 211-a’s impact
on the behavior of the parties upset laboratory conditions
as a matter of law.” In support, the Employer contends
that it was wrongfully denied the ability “to respond to
the union’s organizing activity in the manner it would
have in the absence of” Section 211-a and that it is “im-
possible for the Board to assess the actual impact” of that
circumstance.29 Even assuming that Section 211-a is

28 The Employer’s objections are unusual in a second respect: they
are based on actions directed solely at the Employer. We have
searched our prior decisions and found no case in which objections
were based on allegations that a union petitioner or a third party im-
properly interfered with an employer’s participation in a campaign
preceding an election. Because we uphold the judge’s rejection of the
objections on other grounds, we do not reach the novel questions of
whether such allegations may form the basis of a valid objection or, if
so, under what circumstances.
29 In fact, it is always difficult to assess the actual impact of alleged
objectionable conduct on an election conducted via secret ballot and it
is the Board’s general practice not to attempt to do so. See Cambridge
Tool & Mfg. Co., 316 NLRB 716 (1995) (the Board applies an objec-
preempted, however, we disagree that that legal conclu-
sion alone mandates that the election be set aside.
In addition to the fact that it lacks any support in Board
objections jurisprudence, there are strong practical and
policy reasons not to adopt the Employer’s per se ap-
proach. The Employer’s approach is unworkable insofar
as it necessitates a definitive and binding determination
of the validity of Section 211-a. Even if we could re-
solve the preemption issue in this representation proceed-
ing where the only question before us is whether to over-
turn the election results, we question whether it would be
appropriate to do so, given that the State of New York is
not a party to this proceeding and that, as described
above, the issue is the subject of the ongoing Federal
court litigation. More importantly for our purposes here,
the Board lacks authority to enforce its views concerning
the validity of Section 211-a. Thus, even if we were to
opine here that Section 211-a is preempted, we could not
assure any party that the law would not, nevertheless, be
enforced against them. The state law would remain in
effect, unless and until it is invalidated, or its enforce-
ment enjoined, by a Federal or state court with jurisdic-
tion over the question and authority to issue orders bind-
ing on the state. Until then, employers could continue to
argue that the law inhibited their campaign activity and,
as a result, that election results should be overturned.
The Board may, under appropriate circumstances, ini-
tiate an action in Federal court seeking to enjoin en-
forcement of a state law on preemption grounds.30 As is
made clear by the course of the existing Federal court
litigation concerning Section 211-a, however, a final
resolution of such a preemption challenge to a state law
may take years. Even if preliminary injunctive relief is
sought, it may be denied, and yet the law may still even-
tually be held preempted.31 We are extremely reluctant

tive standard). But, contrary to the dissent’s misstatement of the objec-
tive test as asking whether conduct “has a reasonable tendency to re-
strain activities protected by the Act,” the question asked by the Board
is whether conduct has a reasonable “tendency to interfere with the
employees’ freedom of choice.” Id. at 1021.
30 See generally NLRB v. Nash-Finch Co., 404 U.S. 138 (1971).
31 The dissent’s assumption that the Board will be able to promptly
obtain preliminary injunctive relief barring enforcement of all pre-
empted measures arguably affecting elections is based on the shaky
foundations that (1) future legislation, regulation, and other state action
will be “similar” to that already held preempted in Brown and (2) pre-
emption questions are clear cut. In fact, such questions are often any-
thing but clear cut. No less a labor law expert than Justice Frankfurter
declared in Machinists v. Gonzalez, 356 U.S. 617, 619 (1958), that
“[t]he statutory implications concerning what has been taken from the
States and what has been left to them are of a Delphic nature.” More-
over, even with a preliminary injunction in place, a party like the Em-
ployer in this case could still argue it was chilled by the possibility that
the law might nevertheless ultimately be upheld and eventually en-
forced against it and thereby easily meet the dissent’s virtually per se
INDEPENDENCE RESIDENCES, INC. 731
to adopt the rule proposed by the Employer when it
might require us to hold in abeyance or potentially rerun
all Board-supervised elections that take place in a state
prior to a final and binding resolution of the question of
the validity of such a law. Adoption of the Employer’s
or dissent’s proposed approaches might very well lead to
such an outcome despite the “Act’s policy of expedi-
tiously resolving questions concerning representation.”
Northeastern University, 261 NLRB 1001, 1002 (1982).
For all of those reasons, we reject the Employer’s ar-
gument that the election in this case must be set aside as
a matter of law.
C. Section 211-a is Not Grounds for Overturning the
Election Results Under the Circumstances of this Case
There may be situations where a duly adopted state
law of general applicability so interferes with the conduct
of a Board election that we would find it grounds for
overturning election results under our third-party stan-
dard. But that is not the case here. Section 211-a does
not bar any form of campaign speech or conduct. Rather,
the law merely prohibits employers from using state
funds for three narrow purposes: (1) training manage-
ment regarding methods to encourage or discourage un-
ion organization or employee participation in a union
organizing drive; (2) hiring attorneys, consultants, or
contractors to encourage or discourage union organiza-
tion or employee participation in a union organizing
drive; and (3) paying employees whose principal job
duties are to engage in such activity. The law places no
restrictions on employers’ use of nonstate funds for any
purpose.32 And the law permits employers to use state
funds for a wide variety of campaign purposes, including
urging employees to vote no.
Not surprisingly, then, the evidence in the record
clearly demonstrates that the Employer was able to, and
did, engage in a vigorous campaign to defeat the Peti-
tioner. The record shows that, notwithstanding the exis-
tence of Section 211-a, the Employer had full daily ac-
cess to its employees in the workplace and used that ac-
cess to actively campaign against the Petitioner.
Through flyers, letters, captive-audience meetings, and
individual and small group meetings, the Employer re-
peatedly conveyed to employees negative images of the

standard (“virtually impossible to conclude that the restrictions could
have affected the election results”).
32 The Judge found that the Employer received $80,000 to $100,000
annually from private sources and that approximately half its revenue
came from the Federal Government. While the Federal court litigation
has not resolved the question of whether Federal Medicaid funds are
covered by Sec. 211-a, see Healthcare Assn. v. Pataki, 471 F.3d at
105–106, we do not perceive any construction of the term “monies
appropriated by the state that would encompass funds appropriated by
the federal government.”
Petitioner and of collective bargaining in general, in an
unmistakable effort to discourage unionization. Contrary
to the Employer’s characterization, this campaign was
not limited to providing employees with facts enabling
them to make their own decision. The Employer freely
offered opinions about the adverse consequences of un-
ionization—summarized by the transparent euphemism
that a vote for Petitioner would not be in the employees’
“best interests”—and reinforced its opinions with unlaw-
ful interrogations, solicitation of grievances, a threat of
lost benefits, and a grant of wage increases timed to dis-
suade employees from voting for the Petitioner.
Indeed, the Employer presented little evidence that the
narrow restrictions on use of state funds actually imposed
by Section 211-a impinged on its campaign in any way.
As the judge found, when pressed for specific campaign
conduct it would have engaged in but for Section 211-a,
the Employer’s witness mentioned only that the Em-
ployer would have explicitly urged employees to vote
“no.” Clearly, however, the Employer could have made
such statements without running afoul of Section 211-a.
The only additional relevant testimony was that the Em-
ployer discussed the possibility of hiring a consultant.
We note, however, that the Employer could have hired a
consultant using its nonstate funds.
In these circumstances, and on the record here, we
cannot find that the Employer has carried its burden of
proving that Section 211-a so interfered with the election
that its results must be set aside.33
The dissent presents an extended analysis of the pre-
emptive sweep of Federal labor law and speculates on
the possible impact of our holding on state and local leg-
islators,34 but engages in no analysis whatsoever of the

33 We recognize, of course, that the rule we apply today applies
equally to preempted state action affecting unions and employers, and
that state and local governments have acted in the past, and will likely
to do so in the future, in a manner that impinges on the terrain of Fed-
eral labor law by restricting union activity as well as employer activity.
See, e.g., Hill v. Florida, 325 U.S. 538 (1945) (holding state law requir-
ing licensing of union agents before union could function as collective-
bargaining representative preempted); cf. Hague v. Committee for
Industrial Organization, 307 U.S. 496 (1939) (holding city official’s
interference with union organizing violated the 14th amendment);
Thomas v. Collins, 323 U.S. 516 (1945) (reversing denial of writ of
habeas corpus to free union president imprisoned for contempt after
violating temporary restraining order barring speech to employees prior
to Board-supervised election absent state-issued organizers’ card).
34 The dissent’s statement that the holding in this case will “give im-
petus” to states and localities to adopt preempted measures “to facilitate
union organizing,” suggests that elected officials, including state legis-
lators and governors, are likely to act in violation of the Supremacy
Clause of the United States Constitution. That suggestion is specula-
tion and contrary to the presumption, repeatedly articulated by the
Supreme Court and echoed in the lower Federal courts, that public
officials “will act properly and according to law.” F.C.C. v. Schreiber,
381 U.S. 279, 296 (1965). See also, e.g., Jackson v. Marine Explora-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
question before us—whether the existence of Section
211-a so interfered with the employees’ choice to be rep-
resented that we must take the serious step of overturning
the results of a secret-ballot election in which employees
overwhelmingly chose to be represented after a vigorous
campaign in which both the union and the employer par-
ticipated. That is the determinative question as the rights
contained in Section 7 of the Act, as put into practice by
the election machinery created under Section 9, belong to
employees, not to employers or labor organizations. The
question before the Board in this case is not whether Sec-
tion 211-a is preempted or whether the New York law
chilled the Employer’s campaign activity, but whether
Section 211-a “substantially impaired the employees’
exercise of free choice.” Hollingsworth, supra at 558.
Once the focus is returned to the proper question, it is
clear, contrary to the dissent’s contention, that our hold-
ing rests on longstanding Board law establishing a stan-
dard applicable to third-party conduct potentially affect-
ing the outcome of an election. That standard has repeat-
edly been applied to actions by public officials, including
actions clearly preempted by Federal law. See, e.g.,
Great Atlantic & Pacific Tea Co., 120 NLRB 765, 766–
767 (1958). The dissent would depart from that long line
of precedent, without acknowledging that is what it pro-
poses, and apply a newly minted standard35 that would
require the Board in almost every case to overturn the
expressed will of employees based on a preempted re-
striction on their employer’s capacity to campaign no
matter how vigorous a campaign the employer actually
mounted. The dissent proposes that the Board overturn
the results of every election conducted in a jurisdiction in
which a preempted law or regulation is in effect unless
“it is virtually impossible to conclude that the restrictions
could have affected the election results.” The dissent
would have the Board engage in no analysis of the sever-
ity of the preempted restriction, the likely scope of its
chilling effect, or the ability of the parties to campaign

tion Co., 583 F.2d 1336, 1348 (5th Cir. 1978) (according “presumption
of good faith that attends all actions by public officials”). Even if we
believed it was appropriate to consider the impact of our holding on
state and local officials rather than the impact of the particular state
action at issue here on the employee voters in this case, we would not
make the assumption, underlying the dissent, that such officials would
act in violation of law.
35 The cases from which the dissent draws its proposed standard in-
volved unlawful conduct by parties to the election, i.e., parties gov-
erned by the Act and, therefore, capable of committing unfair labor
practices. The State of New York was neither a party to the election
nor is it governed by the Act. While protesting that the majority hold-
ing is “inconsistent with the Board’s historical approach to state intru-
sions into the Board’s election process,” the dissent does not cite a
single objections case involving state action that supports the dissent’s
proposed standard.
regardless of the restriction. In short, the dissent would
have the Board engage in no analysis of the facts sur-
rounding the vote. But, in “all elections, the Board looks
to the facts and circumstances to determine whether the
atmosphere was so tainted as to warrant the setting aside
of the election.” Delta Brands, Inc., 344 NLRB 252, 253
(2005). The contrary standard proposed by the dissent
simply bears no relation to the purpose of our election
objections jurisprudence—protection of employees’ free
choice of whether to be represented.
IV. CONCLUSION
For the reasons stated, we will certify the Petitioner’s
status as the collective-bargaining representative.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Union of Needletrades Industrial and Tex-
tile Employees (UNITE) AFL–CIO, and that it is the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All full-time and regular part-time and Relief employ-
ees in the classifications of Direct Care Workers, Resi-
dential Habilitation Specialists, Day Habilitation
Workers, Medical Care Workers and Maintenance,
employed by the Employer at and out of its office lo-
cated at 93-22 Jamaica Avenue, Woodhaven, New
York and its facilities listed in Appendix A, excluding
all office clerical and administrative employees, techni-
cal employees, professional and managerial employees,
guards and supervisors as defined in Section 2(11) of
the Act.

MEMBERS SCHAUMBER AND HAYES, dissenting.
The National Labor Relations Act (NLRA or the Act)
expressly protects noncoercive speech by employers or
unions from regulation by the Board. This mandate,
which is rooted in First Amendment principles, manifests
a conscious and specific congressional intent to encour-
age free, uninhibited, and robust debate on issues divid-
ing labor and management, including the decision
whether to choose or reject union representation. Be-
cause Congress has explicitly shielded this zone of activ-
ity from regulation, state attempts to legislatively restrict
noncoercive campaign speech are federally preempted.
The New York statute at issue in this case (§ 211-a), like
the similar California statute struck down by the Su-
preme Court in Chamber of Commerce v. Brown,1 consti-
tutes an impermissible incursion into the realm of na-
tional labor policy.

1 554 U.S. 60 (2008).
INDEPENDENCE RESIDENCES, INC. 733
It is the Board’s duty to zealously guard against such
encroachment, and, until today, this Agency has faith-
fully done so. In particular, the General Counsel and the
Board have consistently maintained that Section 211-a is
preempted under both the Garmon2 and Machinists3 doc-
trines—first in communications with the New York State
Government prior to the effective date of § 211-a and
then in subsequent court filings throughout the Pataki
litigation contesting the validity of the New York law.
Today, although assuming arguendo that Section 211-a
is preempted, which it patently is under Brown, the ma-
jority articulates a legal standard for election objections
that cannot be reconciled with this assumption and is
wrong as a matter of policy and of fact. First, the major-
ity turns federalism on its head by deferring to what it
describes as a “duly adopted” state statute. This is not an
issue of comity. By definition, legislation that is Feder-
ally preempted cannot have been duly enacted because
Congress deprived the states of authority to legislate
within that sphere. Preempted legislation intrudes upon
and interferes with the Board’s primary jurisdiction to
administer an integrated and uniform national labor pol-
icy. Thus, rather than defer to such legislation, it is the
Board’s duty to zealously ensure that such laws yield to
Federal authority and do not impact on Board elections
or rights protected by the NLRA.
Second, the majority’s “analytical framework” and
highly deferential third-party-plus standard defies both
the holding in Brown and the reality of the coercive ef-
fect of state or local governmental regulation on pro-
tected labor speech. Backed by the threat of prosecution
and substantial financial loss, regulations such as Section
211-a pose a far greater control over subject employers’
electoral behavior than any private or individual third
party can wield.
Finally, and perhaps most importantly, the majority’s
analysis invites states and localities to test the limits of
Federal supremacy by enacting laws and ordinances re-
stricting the role of employers in union organizational
campaigns. Until invalidated by the courts, the majority
will give effect to those laws in NLRB election cam-
paigns by overruling objections to their impact unless the
law, in their view, “sufficiently” restrained the em-
ployer’s campaign activities.

2 See San Diego Building Trades Council v. Garmon, 359 U.S. 236
(1959). Garmon preemption forbids states to “regulate activity that the
NLRA protects, prohibits, or arguably protects or prohibits.” Wiscon-
sin Dept. of Industry v. Gould Inc., 475 U.S. 282, 286 (1986).
3 See Machinists v. Wisconsin Employment Relations Common, 427
U.S. 132 (1976). Machinists preemption “forbids both the National
Labor Relations Board (NLRB) and the states to regulate conduct that
Congress intended be unregulated because left to be controlled by the
free play of economic forces.”
In short, our colleagues’ radical and unprecedented
analysis is inconsistent with both explicit statutory re-
strictions and directly applicable Supreme Court juris-
prudence, undermines the rights of employers to ex-
press, and employees to hear, noncoercive information
opposing unionization, and subverts national labor policy
by encouraging state and local legislative interference
with the balance that Congress has struck in favor of free
and uninhibited debate on unionization. We therefore
respectfully dissent.
Facts
As amended, New York Labor Law § 211-a bars state-
funded organizations from using “state” funds to pay
attorneys or consultants, train managers, or hire certain
employees, if any of those activities have the purpose of
encouraging or discouraging union organization or an
employee from participating in a union organizing drive.
§ 211-a(2).4 Affected employers who choose not to re-
main neutral and wish to retain professional aid or to
train their managers to respond to a union campaign must
keep audited financial records for 3 years demonstrating
that only private funds paid for the activities, and must
make these records available upon request by state au-
thorities. § 211-a(3). The Attorney General can sue vio-
lators for injunctive relief, for the return of unlawfully
used funds, and for a civil penalty of up to $1000 or, in
certain cases, up to three times the unlawfully spent
funds, whichever is greater. § 211-a(4).
The law was enacted on October 30, 2002. The
Board’s Assistant General Counsel for Special Litigation
informed the State of New York that same day that the
law appeared to be preempted. Thereafter, an association
of employers subject to the law filed suit in Federal dis-
trict court seeking a declaratory judgment that the law
was preempted by the National Labor Relations Act
(NLRA). See Healthcare Assn. of New York v. Pataki,
388 F.Supp.2d. 6 (N.D.N.Y. 2005), rev’d. 471 F.3d 87
(2d Cir. 2006).
The District Court determined that the New York law
affected the balance of forces in the union organizing
process by “hindering an employer’s ability to dissemi-
nate information opposing unionization.” 388 F.Supp.2d.

4 Sec. 211-a itself does not define the “state funds” to which its pro-
hibitions apply. The Employer receives appropriated funds from the
State of New York, which plainly are covered. About half of the Em-
ployer’s revenue comes from the Federal Government, primarily under
the Medicaid program. These funds also are distributed by the State of
New York. The record in the Pataki litigation includes an affidavit of
M. Patricia Smith, then Assistant Attorney General in Charge of the
Labor Bureau, indicating that “medicaid funds are subject to the stat-
ute.” Healthcare Assn. of New York v. Pataki, 471 F.3d 87, 105 (2d
Cir. 2006). For ease of reference, we shall refer to the funds subject to
§ 211-a as “public funds.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 734
at 23. As the District Court observed, the NLRA gives
employees the right to join a union or to refuse to join a
union, but “[i]t is difficult, if not impossible to see, how-
ever, how an employee could intelligently exercise such
rights, especially the right to decline union representa-
tion, if the employee only hears one side of the story—
the union’s.” Id.
The Board authorized the General Counsel to file an
amicus brief with the Second Circuit in support of the
District Court’s decision, setting forth the Board’s posi-
tion that § 211-a was preempted under both the Garmon
and Machinists doctrines. The Second Circuit remanded
the case for factfinding it deemed necessary to determine
whether either preemption doctrine applied. As the Dis-
trict Court has since recognized, the need for factfinding
was vitiated by the Court’s opinion in Brown.5
The election petition here was filed on April 24, 2003.
It is undisputed that the Employer was aware of § 211-a
at all times relevant to this proceeding. Indeed, the Em-
ployer receives more than 99 percent of its $8 million
budget from public funds subject to these restrictions.6
The Employer complied with § 211-a during the organiz-
ing drive that preceded the election at issue in this case.
There is no evidence that the Employer hired consultants
or paid employees whose principal duties were to en-
courage or discourage unionization, or that it trained its
supervisors to assist it in lawfully responding to the un-
ion campaign. As more fully set forth in the underlying
decision, the Employer’s Executive Director Raymond
De Natale further testified that the Employer tailored its
campaign literature in an effort to comply with the New
York law. The Petitioner also reinforced the message of
§ 211-a in an undated leaflet to employees stating that
“we expect management to remain neutral . . .” in the
campaign.
Following this election campaign, the Union won the
mail ballot election by a vote of 68–32, with 7 non-
determinative challenged ballots. Thereafter, the Em-
ployer timely filed objections asserting that the election
should be set aside because of the impact on the election
of § 211-a.

5 Healthcare Assn. of New York v. Paterson, 1:03-CV-0413 (N.D.
N.Y., March 23, 2010).
6 The majority questions the extent to which § 211-a applies to the
Employer’s revenues, based on their belief that the statute exempts the
Employer’s Medicaid revenue from its prohibitions. As noted above
(see fn. 4), the position of the State of New York in the Pataki litigation
is that §211-a applies to Medicaid funds disbursed by the State. Thus,
we find no reason to question whether Medicaid and other Federal
funds distributed by the State of New York, are exempt from the reach
of the New York law. However, even if there were only uncertainty as
to the scope of funds subject to § 211-a, that uncertainty would exert a
chilling effect on employers covered by the statute, deterring them from
spending such funds for proscribed purposes.
The Report on Objections
The administrative law judge, sitting as a hearing offi-
cer, recommended that the objections be overruled. The
judge assumed for the purpose of ruling on the objections
that § 211-a was preempted by the NLRA. However, he
determined that despite the law the Employer waged a
vigorous campaign in which it made clear its opposition
to unionization, and that the employees were not de-
prived “of their rights to hear both sides of the issues
with respect to unionization.” For these reasons, he con-
cluded that the Employer failed to show that the law pre-
cluded employees from exercising their free choice in
this election.
The Majority’s Opinion
The majority states that they assume § 211-a is pre-
empted. In determining whether the Employer’s objec-
tion has merit, our colleagues appear to apply a relaxed
version of the Board’s “third-party” standard, under
which an election will not be set aside unless the conduct
was “so aggravated as to create a general atmosphere of
fear and reprisal rendering a fair election impossible.”
Westwood Horizons Hotel, 270 NLRB 802, 803 (1984).
They go on to state that this case involves “an objection
based on a duly adopted state law of general applicabil-
ity.” Citing to “questions of federalism” and cases ac-
commodating the NLRA to un-preempted state laws
governing property rights,7 trespass,8 and defamation,9
the majority—though assuming that § 211-a is pre-
empted—nevertheless determines that the preempted
statute should likewise be accommodated “unless it cre-
ates a serious obstacle to the [employer’s] ability to
communicate with employees.”
Applying this newly-fashioned standard, the majority
finds no such obstacle here. They conclude that the Em-
ployer was able to engage in a “vigorous campaign to
defeat the Petitioner,” inasmuch as it circulated flyers
and letters and held “captive-audience meetings” in
which it “conveyed to employees negative images of the
Petitioner and of collective-bargaining in general. . . .”
The majority also asserts that the Employer could have

7 NLRB v. Steelworkers (NuTone), 357 U.S. 357 (1958) (employer
may lawfully maintain and enforce valid rules against solicitation or
literature distribution by employees even if the employer itself engages
in the same conduct).
8 NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) (NLRA does
not displace state law property rights in the case of nonemployee union
organizers except in cases where employees are so inaccessible that
reasonable union efforts to communicate with them are ineffective).
Accord: Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (same).
9 Linn v. United Plant Guard Workers of America Local 114, 383
U.S. 53 (1966) (NLRA does not preempt state defamation laws as
applied to statements made in the course of a labor dispute with “actual
malice” where there is proof of actual harm).
INDEPENDENCE RESIDENCES, INC. 735
used its own funds not derived from the State to engage
in the activities prohibited by § 211-a. On these facts,
the majority concludes that § 211-a has not “so inter-
fered” with the election that it must be set aside.
Discussion
A. The Board’s Prior Position that § 211-a is Preempted
is Compelled by Controlling Supreme Court Precedent
Although it should not matter for purposes of analyz-
ing the issue before us, there is no need for us merely to
“assume,” as the majority does, that § 211-a is pre-
empted. The Board’s steadfast position in the Pataki
litigation that § 211-a is preempted has clearly been vali-
dated by the Supreme Court in Brown.10 There, the
Court reasoned that the California statute’s spending
limitations, which parallel those in § 211-a, constituted
impermissible indirect regulation, despite restricting only
the use of state funds, because they “imposed a targeted
negative restriction on employer speech about unioniza-
tion” and “coupled its ‘use’ restriction with compliance
costs and litigation risks that are calculated to make un-
ion-related advocacy prohibitively expensive for em-
ployers that receive state funds.” Id. at 2415. Such
compliance and enforcement provisions impose obvious
and significant constraints on an employer’s free speech
right to communicate its views on unionization to em-
ployees. Id. at 2416.
Notably, the Brown Court relied solely on the exis-
tence and likely effect of the compliance and enforce-
ment provisions, without any citation to record evidence
of the actual effect of the statute on covered employers.
See id. at 2416. After all, the most effective threat is one
that requires no further action to accomplish its purpose.
The Court’s analysis provides the proper framework for
the manner in which the Board should decide this case:
namely to determine whether the restrictions and sanc-
tions imposed by the preempted New York statute rea-
sonably could have chilled employers (or other parties)
in the exercise of the free speech rights vested by Section
8(c) of the Act in elections conducted while the statute
remained in effect. If so, then the election should be set
aside absent evidence that it would have been virtually
impossible for the statute to have affected the election
results.
B. The Board Does Not and Should Not Defer to or At-
tempt to Accommodate Laws Preempted by the NLRA
Our Constitution establishes a system under which the
Federal Government possesses certain enumerated pow-

10 Because the Court found the statute preempted under Machinists,
it did not reach the question whether the provisions would also be pre-
empted under Garmon. 128 S.Ct. at 2412.
ers, while other powers are reserved to the States and to
the people. This division of authority was adopted by the
Framers to ensure the protection of our fundamental lib-
erties. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
Respect for the authority of the several States to pass
laws regulating the conduct of those within their borders
is a value we share with our colleagues.
However, an equally important core federalism princi-
ple is the rule that a valid law passed by Congress under
one or more of the enumerated powers of the Federal
Government is “the supreme Law of the Land . . . any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Constitution Article VI
Cl.2. Such laws take precedence over inconsistent state
enactments, as the Supreme Court has long held. Gib-
bons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
The National Labor Relations Act “is federal legisla-
tion, administered by a national agency, intended to solve
a national problem on a national scale.” NLRB v. Hearst
Publications, 322 U.S. 111, 123 (1944). Congress des-
ignated the Board—not the courts or state legislatures—
as the instrument for the implementation of national la-
bor policy in order “to obtain uniform application of its
substantive rules and to avoid those diversities and con-
flicts likely to result from a variety of local procedures
and attitudes towards labor controversies.” Garner v.
Teamsters, 346 U.S. 485, 490–491 (1953). Preemption
principles implement that Federal labor policy by “pre-
clud[ing] state interference with the National Labor Rela-
tions Board’s interpretation and active enforcement of
the integrated scheme of regulation established by the
NLRA.” Chamber of Commerce of U.S. v. Brown, 128
S.Ct. 2408, 2412 (2008) (internal quotations and citations
omitted). Specifically, Garmon preemption “forbids
States to regulate activity that the NLRA protects, pro-
hibits, or arguably protects or prohibits,” and Machinists
preemption “forbids both the [Board] and States to regu-
late conduct that Congress intended to be unregulated
because left to be controlled the free play of economic
forces.” Id. (internal quotations and citations omitted).
By definition, a state statute that is Federally pre-
empted interferes with the Board’s primary jurisdiction
to interpret and enforce the Act and/or represents an im-
permissible attempt to regulate within a zone Congress
protected and reserved for market freedom. Not surpris-
ingly, therefore, the Board has never, until the majority’s
decision today, deferred to or attempted to accommodate
preempted laws but has instead sought to insure that they
had no effect on the parties before it. In Laclede Gas
Light Co., 80 NLRB 839, 842 (1948), for example, the
Board summarily rejected an election objection grounded
on a state law permitting employees of an employer with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 736
more than one plant to have a separate plant unit if they
so desired. See also Eppinger & Russell Co., 56 NLRB
1259 (1944) (employer could not refuse to bargain with
union based on its failure to comply with state law re-
quiring union officials to obtain a license before acting as
a union representative in that state).11
In furtherance of its statutory mandate, the Board’s
practice for years has been to seek to enjoin the applica-
tion of preempted legislation under the authority of
NLRB v. Nash-Finch Co., 404 U.S. 138 (1971). See
NLRB v. State of North Dakota, 504 F.Supp.2d 750 (D.
N.D. 2007) (declaratory judgment that NLRA preempted
state law requiring nonmembers to pay union for ex-
penses incurred in representing employee in grievance
arbitration). The same vigilance has been applied to state
court injunctions that are inconsistent with Federal labor
policy.12 The majority’s decision represents an abrupt
and unwarranted departure from these settled principles
and practices. Rather than reaffirm the Board’s primary
role in implementing an integrated and uniform national
labor policy, they question the Board’s very authority to

11 ATC/Vancom of California, L.P., 338 NLRB 1166 (2003), enfd.
370 F.3d 692 (7th Cir. 2004), a case cited by the majority, is not to the
contrary. There, the Board held that an employer violated Sec. 8(a)(5)
and (1) by barring the union representing its employees from using a
bulletin board to post notices to employees where the parties’ collec-
tive-bargaining agreement authorized the postings. The Board also
sustained a parallel objection to the decertification election premised on
this conduct and directed a second election. In reaching this conclu-
sion, the Board rejected the employer’s argument that its actions were
privileged by the California employer neutrality law discussed above—
but solely on the basis that it took the challenged actions before the law
went into effect.
The Board specifically noted that the employer could move for re-
consideration of the Board’s Order if its actions were subsequently
challenged under the California law. This unusual language makes
clear that the potential impact of the California law on compliance with
the Order, and on the anticipated second election, was of concern to the
Board, just as application of the New York law to this election should
be of concern to the Board now. It is hardly surprising that the Board
would refrain from issuing an anticipatory ruling on whether or how the
California law would affect compliance with its Order and Direction
after that law became effective. That issue was neither presented by the
facts of the case before the Board nor ripe for decision at that time. In
any event, nothing in the Board’s opinion in ATC supports the “serious
obstacle” standard our colleagues have adopted today.
12 See NLRB v. Butts, 554 F.Supp. 136 (D. La. 1982) (state court in-
junction prohibiting discharge of employees for nonmembership in
union preempted); NLRB v. State of New York, 436 F.Supp. 335 (E.D.
N.Y. 1977), aff’d. 591 F.2d 1331 (2d Cir. 1978), cert. denied 440 U.S.
950 (1979) (state court injunction prohibiting strike preempted); NLRB
v. State of Florida, 868 F.2d 391 (11th Cir. 1989) (same). See also
NLRB v. Committee of Interns & Residents, 566 F.2d 810 (2d Cir.
1977), cert. denied 435 U.S. 904 (1978) (state labor board jurisdiction
over medical residents preempted).
pass on preemption claims, a stance at odds with decades
of Board precedent.13
Our colleagues concede that their analytical frame-
work and standard are unprecedented, but purport to
draw support for their position from cases dealing with
nonpreempted state laws concerning property rights and
defamation. In their view, elections “always take place
against a background of state laws that significantly in-
fluence the ability of employers, unions, and employees
to communicate their views on organization,” and there-
fore Section 211-a should be accommodated in a manner
similar to these nonpreempted statutes.
The majority’s analysis is flawed in a myriad of ways,
but most fundamentally by their failure to grasp the dis-
tinction between the cases they cite and the facts pre-
sented here. First, trespass and defamation are not pro-
tected by the Act, either explicitly or implicitly; non-
coercive campaign speech is.14 Congress has specifically
shielded the latter from intrusive regulation either by the
Board or the states. As the Supreme Court observed in
Brown:

It is indicative of how important Congress deemed such
free debate that Congress amended the NLRA rather
than leaving to the courts the task of correcting the
NLRB’s decisions on a case-by-case basis. We have
characterized this policy judgment, which suffuses the
NLRA as a whole, as favoring uninhibited, robust, and
wide-open debate in labor disputes, stressing that free-
wheeling use of the written and spoken word . . . has
been expressly fostered by Congress and approved by
the NLRB.

128 S.Ct. 2413–2414. The Board’s institutional obligation
to implement this policy judgment, and to ensure the full
exercise of the rights vested by the statute, requires an ap-
proach decidedly different from cases involving conduct

13 See, e.g., Star Tribune, 295 NLRB 543, 549 fn. 22 (1989) (“to the
extent that the Minnesota statute permits the Respondent to engage in
conduct that is arguably prohibited by the National Labor Relations Act
. . . the state statute is preempted by the Act.”) State of Minnesota,
supra (Minnesota Labor Relations and Charitable Hospitals Acts pre-
empted as applied to nonprofit hospitals subject to NLRA); Massachu-
setts Nurses Assn., 225 NLRB 678 (1976), enfd. 557 F.2d 894 (1st Cir.
1977) (NLRA preempts Massachusetts law mandating binding interest
arbitration for hospitals).
14 See Brown, 128 S.Ct. at 2414 (“In the case of noncoercive speech
. . . the protection is both implicit and explicit. Sections 8(a) and 8(b)
demonstrate that when Congress has sought to put limits on advocacy
for or against union organization, it has expressly set forth the mecha-
nisms for doing so. Moreover, the amendment to § 7 calls attention to
the right of employees to refuse to join unions, which implies an under-
lying right to receive information opposing unionization. Finally, the
addition of 8(c) expressly precludes regulation of speech about unioni-
zation. . . .”).
INDEPENDENCE RESIDENCES, INC. 737
that either the Board or states are free to regulate. The ma-
jority’s decision ignores this distinction.
Second, the cases cited by the majority all involve stat-
utes that have been found not to be preempted by the
NLRA—that is, a determination has been made that state
legislation on those issues does not interfere with na-
tional labor policy. Accommodation to state law is en-
tirely appropriate, if not required, in that setting. See,
e.g., NLRB v. Babcock & Wilcox Co., supra, 351 U.S. at
112 (“Organization rights are granted to workers by the
same authority, the National Government, that preserves
property rights. Accommodation between the two must
be obtained with as little destruction of one as is consis-
tent with the maintenance of the other.”). Accord: Linn
v. United Plant Guard Workers of America Local 114,
supra, 383 U.S. 53 (malicious defamation that causes
actual harm can be redressed under state law without
interfering with national labor policy).
Entirely different considerations apply in the context
of a preempted statute. As explained above, an “assump-
tion” of Federal preemption means that: (1) the law’s
application is inconsistent with Federal labor policy; (2)
the law regulates conduct that Congress chose to leave
unregulated, to be governed by the free play of economic
forces; and (3) the law thereby affects the balance of
forces in the union organizing process by “hindering an
employer’s ability to disseminate information opposing
unionization.” Healthcare Assn. of New York v. Pataki,
supra, 388 F.Supp.2d at 23. Deference to preempted
statutes therefore is neither warranted nor consistent with
the Board’s statutory mandate.15
Our colleagues repeatedly deny that their standard is
new or that it defers to a preempted law, but these char-
acterizations are accurate all the same.16 First, while

15 See generally, Charish, Debra, Union Neutrality Law or Employer
Gag Law? Exploring NLRA Preemption of New York Labor Law §
211-a, 14 J.L. & Policy 779 (2006) (New York law is “at odds with
federal labor policy as it currently exists. Should the unions believe
that union neutrality laws are an effective and important mechanism for
bolstering union membership, they ought to lobby Congress to amend
the NLRA directly. . . .”)
16 Great Atlantic & Pacific Tea Co., 120 NLRB 765 (1958), a case
on which the majority relies, provides no support for the standard they
espouse. There, the Board determined that the arrest of the union’s
principal organizer in front of eligible voter’s minutes before the polls
opened created an atmosphere of confusion that prevented a fair elec-
tion. In setting aside the election, the Board applied the traditional third
party standard—not the more permissive version the majority advances.
And the Board’s decision rested entirely on the fact of the arrest, in
front of eligible voters, and its timing, not the nature of the offense for
which the union organizer was arrested. The Board placed no reliance
on the fact that the arrest was for violation of a county ordinance re-
quiring union organizers to obtain a permit before soliciting member-
ship and did not engage in a preemption analysis. These considerations
were irrelevant to the disposition of the case given its facts. As such,
purporting to apply the established third party standard,
the majority grafts onto that standard—for the first time
in Board history—the analysis used by the Supreme
Court in accommodating the Act to unpreempted state
laws. That accommodation analysis, in turn, requires in
their view an unprecedented evidentiary showing that the
law “creates a serious obstacle” to the employer’s ability
to communicate with employees. Second, the majority’s
analysis by its own terms treats Section 211-a no differ-
ently than a law that is not preempted; indeed, the major-
ity expressly relies to this end on NLRB v. Babcock &
Wilcox Co., supra, a case that required accommodation of
the Act to the unpreempted state law at issue there. Short
of exempting § 211-a from any scrutiny whatsoever, it is
difficult to imagine a more deferential standard of re-
view, or one more inconsistent with the Board’s historic
approach to state intrusions into the Board’s election
processes.
C. The Majority’s Objectionable Conduct Standard is
Inappropriate For Evaluating the Effect of Preempted
State and Local Interference in Election Campaigns
In fashioning a new standard of proof for objections to
preempted state and local regulation of noncoercive
speech in Board election campaigns, our colleagues start
with the most permissive standard possible—the third
party “general atmosphere of fear and reprisal” stan-
dard—and then raise the bar for objections even further
through their use of the accommodation analysis and
“serious obstacle” standard described above.17 Precisely
what an objecting party would have to establish under
their standard to set aside an election, they never say; but
whatever that heightened showing is, they conclude it
was not met here because they find that § 211-a did not
have a “sufficient” impact on eligible employees to war-
rant setting aside the election.
The justifications for imposing a heightened standard
in assessing whether nonparty conduct, typically threats
or promises, warrants setting aside an election do not
apply in the context of state prohibitions against em-
ployer campaign activities protected by the NLRA. First,

the case says nothing about the proper standard to apply where, as here,
the election objection does turn on preemption principles.
17 As noted above, a preempted statute cannot, by definition, have
been “duly adopted.” Moreover, the majority is simply wrong to term
New York Labor Law § 211-a a “State law of general applicability.”
The law applies only to employers, not unions or other entities, and
only to those who receive funds from the State. In any event, it does
not matter “whether the States have acted through laws of broad gen-
eral application rather than laws specifically directed towards the gov-
ernance of labor relations. Regardless of the mode adopted, to allow
the States to control conduct which is the subject of national regulation
would create potential frustration of national purposes.” Garmon,
supra, 359 U.S. at 244.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 738
as discussed above, the Board has a special institutional
obligation to protect against state encroachment on the
Board’s processes, and that obligation dictates height-
ened, not lessened, scrutiny of the likely impact of pre-
empted state legislation.
Second, and perhaps more importantly, the underlying
premises for the Board’s third party standard are inappli-
cable here. The Board applies a lower standard to the
conduct of third parties in part because it tends to have
less impact on the election than similar conduct by em-
ployers or unions—which either have or seek control of
employees’ working conditions.18 These considerations
are inapplicable to preempted regulation by a state or
local governmental entity, which has a legislative man-
date, the bureaucratic will, and the financial deep pockets
to engage in sustained investigation of and litigation
against suspected employer violators. Further, implicit
in Section 211-a and similar legislation restricting the
ability of employers to oppose unionization is the mes-
sage that employers who engage in such disfavored ac-
tivity are not only subject to civil fines but may ulti-
mately lose the Government contracts whose revenue the
employers depend on for their very existence.19 The co-
ercive potential and deterrent effect of such preempted
laws is far, far greater than that of typical alleged third
party election interference, such as a politician who sug-
gests in a letter that the employer may close the plant, or
a pro-union employee who promises fellow employees
higher wages and benefits. Yet our colleagues have de-
termined that the burden of proof for setting aside an
election conducted under this governmental cloud of
preempted regulatory restriction should be higher even
than for allegations of third party misconduct.
A further justification sometimes offered for the more
permissive third party standard is that imposing party-
type liability might result in more elections being set
aside because third parties, unlike unions and employers,
would not be deterred by the trouble and expense of re-
running elections and the threat of unfair labor practice
liability. The absence of such deterrents might make
third parties more likely to engage in repeated miscon-
duct to prevent a final election result.20 In the context of
state interference with Board elections, however, the
incentives are reversed. As discussed below, by impos-
ing a highly deferential third party-plus standard that
effectively implements the preempted restrictions of

18 See, e.g., Otterbacher Mfg., 279 NLRB 1167 (1986); NLRB Out-
line of Law and Procedure in Representation Cases (2008), Section 24-
326, at p. 315.
19 As noted previously, 99 percent of the Employer’s budget comes
from public funds subject to § 211-a.
20 See, e.g., Orleans Mfg. Co., 120 NLRB 630 (1958).
211-a, our colleagues invite, rather than deter such legis-
lative initiatives.
If the instant situation is analogous to any election ob-
jection context, it would be cases in which there has been
a determination that an unlawful restriction has been im-
posed on a union’s or employee’s right to distribute or
access information relevant to a decision on unionization.
In those circumstances, with very few exceptions, the
Board holds that the unlawful conduct is “a fortiori, con-
duct which interferes with the exercise of a free and un-
trammeled choice in the election,” Dal-Tex Optical Co.,
137 NLRB 1782, 1786–1787 (1962), and will set aside
the election unless it is “virtually impossible to con-
clude” the unlawful conduct could have affected the elec-
tion results. Safeway, Inc., 338 NLRB 525, 526 fn. 3
(2002).21 And in making that determination, the Board,
as our colleagues concede, applies an objective test that
considers only whether the restriction has a reasonable
tendency to restrain activities protected by the Act; the
Board does not look further to determine whether the
restriction actually did so.
A similarly demanding standard should apply in the
instant case, and if applied, would require setting aside
the election results. Section 211-a unquestionably im-
posed restrictions, inter alia, on the Employer’s right to
lawfully hone and communicate its opposition to unioni-
zation to its employees through supervisors and consult-
ants. Those restrictions, backed by substantial civil sanc-
tions, plainly had a reasonable tendency to, and actually
did, inhibit the Employer’s free expression of its mes-
sage, as there is no dispute in this case that the Employer
complied with the prohibitions against using public funds
to hire consultants, pay employees whose principal duties
were to discourage unionization, or that it trained its su-
pervisors to assist it in lawfully responding to the union
campaign. Those restrictions, in turn, impaired the Sec-
tion 7 right of every unit employee to receive informa-
tion opposing unionization.

As the Supreme Court explained in finding similar
regulatory restrictions preempted in Brown, AB 1889’s
enforcement mechanisms put considerable pressure on
an employer either to forgo his free speech right to

21 The majority appears to argue that the virtually impossible stan-
dard is inapplicable because in Safeway and similar cases the source of
the unlawful restriction on communication with employees was a party
to the election governed by the Act, while in this case the source was
the State of New York, which is not. That is a distinction without a
difference because the preempted restrictions imposed by § 211-a are
just as impermissible and just as disruptive to laboratory conditions as
any restriction imposed by an employer or a union in violation of the
Act. And the Board has ample authority to make the required preemp-
tion finding for the reasons stated above.
INDEPENDENCE RESIDENCES, INC. 739
communicate his views to employees, or else to refuse
the receipt of any state funds. In so doing, the statute
impermissibly predicates benefits on refraining from
conduct protected by federal labor law, and chills one
side of the robust debate which has been protected un-
der the NLRA.

128 S.Ct. 2416–2417 (internal citations and quotations
omitted). Because § 211-a fundamentally altered the land-
scape Congress envisioned for Board elections, and had a
reasonable tendency to interfere with free expression, it
cannot be said that it is virtually impossible to conclude that
the restrictions could have affected the election results.
Thus, the election should be set aside.
Our colleagues attempt to revive, under the guise of an
objections analysis, the very arguments explicitly re-
jected by the Supreme Court in Brown. Apparently con-
ceding that § 211-a had at least some impact on the con-
duct of this election, they seek to minimize that impact
by observing that the law “does not bar any form of
campaign speech or conduct,” “merely prohibits employ-
ers from using state funds for three narrow purposes,”
and left the Employer free to engage in the prohibited
purposes “using its non-state funds.” However, the
Court in Brown specifically rejected the “it’s only a use
restriction” argument as a distinction without a differ-
ence, noting that “California plainly could not directly
regulate noncoercive speech about unionization by
means of an express prohibition. It is equally clear that
California may not indirectly regulate such conduct by
imposing spending restrictions on the use of state funds.”
128 S.Ct. 2414–2415. Applying the same principles sub-
sequently articulated in Brown, the district court in the
Pataki litigation came to exactly the same conclusion
with respect to § 211-a, finding that its prohibitions,
however narrow, “hinder[ ] an employer’s ability to dis-
seminate information opposing unionization” and
thereby interfere with employees’ right to refrain from
union representation. Pataki, supra, 388 F.Supp.2d at 23.
We view the Court’s decision in Brown as mandating the
result in this case. Spending restrictions on the use of
state funds, when coupled with recordkeeping require-
ments and sanctions, chill free expression no less than a
direct bar on campaign speech or conduct. That reason-
able tendency alone is a sufficient basis to set aside the
election.
It is no answer to say, as our colleagues do, that the
Employer was able to “engage in a vigorous campaign to
defeat the Petitioner.” At bottom, this argument rests on
their judgment that the Employer was able to do enough
campaigning, and that the employees heard enough ar-
guments against unionization to be able to make an in-
formed choice in the election. But this analysis, which
they propose to engage in on a case-by-case basis in elec-
tions tainted by preempted state statutes such as § 211-a,
involves precisely the type of judgments Section 8(c)
precludes us from making. By adjudicating whether a
state’s deprivation of certain statutorily protected cam-
paign activities had, in the Board’s view, a “sufficient”
impact on a given election to warrant setting it aside (or
not), our colleagues engage in just another form of indi-
rect regulation of noncoercive speech. This, we lack the
authority to do. NLRB v. Gissel Packing Co., supra (“an
employer’s free speech right to communicate his views
to his employees is firmly established and cannot be in-
fringed by a union or the Board.”); Chamber of Com-
merce v. Brown, supra (Congress has “clearly denied”
the Board—and the states—the authority to regulate
noncoercive speech).22
The majority nevertheless engages in precisely this in-
quiry, in the guise of considering all the facts and cir-
cumstances, and accuses us of failing to engage in “any
analysis of the facts surrounding the vote.” See Delta
Brands, Inc., 344 NLRB 252, 253 (2005) (“with all elec-
tions, the Board looks to all of the facts and circum-
stances to determine whether the atmosphere was so
tainted as to warrant the setting aside of the election.”)
To the contrary, we have considered all of the relevant
facts, particularly the fact that the preempted New York
law plainly chilled the exercise of covered employers’
Section 8(c) rights, and the concomitant Section 7 rights
of employees to access to information in opposition to
unionization. Those facts are dispositive, in our view,
absent proof that it was virtually impossible that the pre-
empted restrictions affected the election results. In con-
trast, our colleagues give controlling weight to their
judgment that the Employer in this case was able to cam-
paign “enough”—an irrelevant consideration because it
requires a judgment we lack the statutory authority to
make. Thus, our colleagues, not us, fail to give proper
consideration to the relevant circumstances in this case.
C. The Majority’s Analysis Invites States and Localities
to Enact Preempted Legislation that Interferes with
the Board’s Election Processes
Compelling and obvious policy considerations dictate
against the approach endorsed by the majority, which, if
permitted to stand, would encourage future state and lo-
cal legislative initiatives such as § 211-a, which already

22 The majority’s reliance on the unfair labor practices committed by
the Employer as evidence that the election was fair is equally unavail-
ing. They were properly remedied by the Board’s unpublished order in
the related unfair labor practice case, and have no bearing on whether
the Employer was constrained in its lawful communication with em-
ployees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 740
have proliferated in recent years, typically at the behest
of labor organizations. Under normal circumstances, the
Supreme Court having now definitively spoken on the
issue, we would anticipate that legislators would refrain
from expending their limited resources on laws that are
more than likely to be enmeshed in expensive and pro-
tracted litigation and ultimately enjoined as inconsistent
with our integrated national labor scheme. However, our
colleagues inject new incentives into the mix by giving
effect to preempted legislation in Board elections unless
covered employers can meet a vague and almost impos-
sibly high burden of proof. We can think of no more
damaging and dangerous course. 23
Ignoring these ramifications, the majority contends,
ironically, that “practical and policy reasons” actually
dictate their approach, and that addressing the preemp-
tion issue and its impact on the Board’s analysis in such
cases “might require us to hold in abeyance or potentially
re-run all Board-supervised elections that take place in a
state prior to a final and binding resolution of the ques-
tion of the validity of such a law.” These concerns are
overstated. First, the Board has an excellent track record
of obtaining timely injunctive relief against preempted
state laws in Nash-Finch litigation.24 Indeed, it is pre-

23 The majority’s opinion in effect implements a “New Federalism”
doctrine advocated by some in academia to limit the scope of Federal
preemption and to encourage states to be more proactive in passing
legislation protective of union organizational activities because the
Federal protective scheme under the Act has allegedly failed to do the
job. See, e.g., Henry H. Drummonds, Beyond the Employee Free
Choice Act: Unleashing the States in Labor-Management Relations
Policy, 19 Cornell J.L. & Pub. Policy 83 (2009), and Paul M. Secunda,
The Ironic Necessity for State Protection of Workers, 157 U. Pa. L.
Rev. 29, 29 (2008). Of course, as applied to the Act and controlling
Supreme Court precedent, the doctrine is no more valid than the nullifi-
cation doctrine rejected long ago during the Jacksonian presidency. We
do not suggest that state and local authorities would act in deliberate
defiance of Federal law, although we obviously take notice that Sec.
211-a is the third such piece of legislation the Board has been called
upon to examine in recent years. Our primary concern is that local
authorities will be encouraged to pass legislation based on a restrictive,
and ultimately incorrect view, of the scope of Brown and the preemp-
tion doctrine. That concern is certainly heightened by our colleagues’
unwillingness to do no more than “assume” preemption, and their adop-
tion of a highly deferential standard that permits such legislation to
directly impact Board elections.
Of course, we would hold the same view with respect to preempted
legislation limiting an organizing union’s ability to communicate with
employees, although no such cases have been presented to us for re-
view.
24 The majority questions our assumption of timely injunctive relief,
but this assumption is well-founded in actual experience. See NLRB v.
Butts, supra, 554 F.Supp. 136 (preliminary injunction obtained in 2
months); NLRB v. State of North Dakota, supra (declaratory judgment
obtained in 3 months); NLRB v. State of New York, supra (injunction
obtained in 11 months); NLRB v. State of Florida, supra (temporary
restraining order issued in 7 days).
cisely to avoid the potential interference with Board con-
ducted elections that the Agency has historically inter-
vened, as it did in Pataki, at a very early stage to secure
either an injunction or a commitment that the legislation
will not be enforced pending judicial resolution.25 Such
litigation should prove even easier in the wake of the
Supreme Court’s decision in Brown, which will permit
many future preemption challenges to similar legislation
to be resolved on summary judgment motions. Second,
our colleagues point to no instance in which a state has
insisted upon enforcement of legislation in the face of a
Federal preemption challenge brought by the Board un-
der the NLRA, so those fears are purely speculative.26
Third, even if a court subsequently determined that state
legislation was not preempted, that would not necessarily
require a conclusion that the effects of the legislation did
not sufficiently impact laboratory conditions to warrant
setting aside an election. In short, the policy and practi-
cal considerations identified by our colleagues are more
illusory than real and do not outweigh the vastly more
significant problems created by their decision.27

The majority also posits that even a valid injunction would not meet
our standard because it might be overturned. The effect of such an
injunction would, of course, depend on its terms and on the litigation
positions of the parties. See Clarke v. U.S., 915 F.2d 699 (D.C. Cir.
1990) (discussing effect of subsequently-vacated preliminary injunction
on possible prosecution for conduct that occurred while it was in force).
Our point is that seeking such relief, as the Board has consistently done
in the past, is preferable to the radically different course proffered by
the majority.
25 As discussed above, our colleagues appear to eschew the Board’s
historic practice of early intervention in preemption cases; a stance
difficult to square with their stated grave concerns about holding in
abeyance elections conducted while such legislation remains in effect.
The way to dispel such concerns is to enjoin enforcement or to obtain a
voluntary agreement to the same effect.
26 Indeed, the State of New York voluntarily agreed to refrain from
enforcement activity under the New York statute at issue here as early
as 2008. Healthcare Assn. of New York v. Paterson, 1:03-CV-0413
(N.D. N.Y., January 28, 2008) (unpublished order). Without passing
on the sufficiency of this commitment, an issue that is not before us, we
would not find that the New York statute reasonably could have chilled
the exercise of Sec. 8(c) free speech rights by an employer that had
timely notice of a sufficiently comprehensive nonenforcement com-
mitment, and we doubt our colleagues would do so either.
27 The concurrence notes the significant period of time that has
elapsed since the election in this case. We share our colleague’s con-
cern, however, our approach will minimize any further delay in this
case and future cases presenting similar issues. The concurrence also
stresses that the paramount consideration here is the wishes of the em-
ployees concerning union representation. Again, we agree, but Con-
gress has determined that employees’ true wishes cannot be ascertained
unless there is an opportunity for a free and unfettered debate on the
pros and cons of unionization, which could not happen here because of
the impermissible restrictions on speech imposed by the preempted
statute. Finally, while we do not condone the Employer’s commission
of unfair labor practices during the election campaign, we cannot agree
with our concurring colleague’s apparent view that the lack of “clean
INDEPENDENCE RESIDENCES, INC. 741
CONCLUSION
By validating the results of a Board election conducted
under the cloud of an obviously preempted Section 211-
a, our colleagues give impetus to state and local legisla-
tive initiatives that aim to facilitate union organizing and
stifle noncoercive employer speech. However, the
Board’s role is to effectuate the Congressional preroga-
tives embodied in the statute we administer. Those pre-
rogatives include free, robust, and untrammeled debate
on the pros and cons of union representation, and a uni-
form and integrated national labor policy that is not sub-
ject to varying local conceptions. The majority’s deci-
sion ignores our statutory mandate and represents a radi-
cal departure from well-established principles of law and
decades of Board practice. It is a step down a dangerous
path that disregards Federally protected rights in favor of
deference to state policy choices which conflict with
those made by Congress. Because their decision is sup-
ported neither by law nor sound policy, we dissent.

CHAIRMAN LIEBMAN, concurring.
I join the majority opinion, but write separately to em-
phasize certain points at risk of being obscured by our
debate here.
This case has languished at the Board for over 7
years—an unconscionably long time—as a still-
unresolved challenge to New York State Labor Law Sec-

hands” should preclude the Employer from objecting to the impact of
Sec. 211-a on the election.
tion 211-a has worked its way through the Federal judi-
cial system.
The Board itself has no power to enjoin the New York
statute, preempted or not. On the dissent’s view, the
existence of a state law generally could prevent the
Board from fulfilling its statutory duty to conduct union-
representation elections and to give effect to the voters’
choice. That result turns the principle of Federal su-
premacy upside down.
Here, the Employer insists that it was chilled by New
York’s law from conducting the antiunion campaign it
wanted to mount. But the Employer was not chilled by
the National Labor Relations Act. It committed unfair
labor practices during the election period, trying to co-
erce employees. On factual grounds, then, it is hard to
credit and endorse the Employer’s claim—even apart
from the unfairness of setting aside an election at the
urging of a party that itself tried to destroy employee free
choice.
The Board’s proper focus is on the voters in this elec-
tion case: employees. Nothing in the evidence persuades
me that the New York law prevented employees from
freely choosing whether or not they wished union repre-
sentation. They knew just where the Employer stood—
so opposed to the Union that it was willing to violate
Federal law—and voted two to one for the Union even
so. Viewed pragmatically, and with the basic goals of
Federal labor law in mind, the resolution of this case is
simple.