Novotel New York

National Labor Relations Board - Board Decisions

Jul 8, 1996

321 N.L.R.B. 624 (N.L.R.B. 1996)

624
321 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The issue Objection 4 raises is whether the Petitioner
impermissibly promised employees that if the Petitioner won the
election, employees would receive credit under the Petitioner’s pen-
sion plan for the years they had worked for the Employer. As set
forth infra, we agree with the hearing officer’s recommendation that
Objection 4 be overruled.
2 Amici curiae briefs were filed by the following organizations:
International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL–CIO (UAW); the United Food
and Commercial Workers International Union, AFL–CIO (UFCW);
the UMWA; the SEIU; the American Federation of State, County
and Municipal Employees, AFL–CIO (ASFCME); the International
Brotherhood of Teamsters (IBT); and COLLE.
3 All dates are in 1994.
4 The Employer has excepted to the hearing officer’s finding that
a unit employee provided the Petitioner with a tape recording of the
Employer’s director of human resources acknowledging the alleged
wage irregularities. We need not pass on this exception, however,
because we do not rely on the tape recording in finding that employ-
ees informed the Petitioner of the Employer’s allegedly unlawful
wage payments.
5 29 U.S.C. § 201 et seq.
52nd Street Hotel Associates d/b/a Novotel New
York and Hotel and Motel Trades Council,
AFL–CIO, Petitioner. Case 2–RC–21475
July 8, 1996
SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The major issue in this case is the one presented by
Objection 1: Did the Petitioner engage in objectionable
conduct by providing unit employees legal services to
investigate, prepare, and file a lawsuit asserting their
wage claims under the Fair Labor Standard Act? Rely-
ing on Board precedent in Nestle Dairy Systems, 311
NLRB 987 (1993), enf. denied sub nom. Nestle Ice
Cream Co. v. NLRB, 46 F.3d 578 (6th Cir. 1995), the
hearing officer recommended that Objection 1 be over-
ruled and that the Petitioner be certified. We agree
with the result reached by the hearing officer, but, in
view of the contrary decision of the Sixth Circuit in
Nestle, supra, we take this opportunity to clarify Board
law on this issue.
I. PROCEDURAL BACKGROUND
Pursuant to a Stipulated Election Agreement, an
election was held December 9, 1994. The tally of bal-
lots shows 70 for and 56 against the Petitioner, with
10 challenged ballots, a number insufficient to affect
the results of the election. The Employer filed four ob-
jections.
On May 25, 1995, the Board adopted the Regional
Director’s report recommending that Objections 2 and
3 be overruled, and recommending that a hearing be
held on Objection 4.1 Contrary to the Regional Direc-
tor, however, the Board found that Objection 1 raised
substantial issues warranting a hearing.
On June 23, 1995, Hearing Officer Terry A. Morgan
issued a report recommending that Objection 1 be
overruled. The Employer filed exceptions and a sup-
porting brief, and the Petitioner filed a brief in opposi-
tion to the Employer’s exceptions and in support of the
hearing officer’s report.
On July 3, 1995, the Board scheduled oral argument
concerning Objection 1 because it presented important
issues in the administration of the National Labor Re-
lations Act (the Act or NLRA). The Board heard oral
argument in this proceeding on August 7, 1995, in
Chicago, Illinois, from the Employer, the Petitioner,
and the following amici curiae: the American Federa-
tion of Labor and Congress of Industrial Organizations
(AFL–CIO); the Council on Labor Law Equality
(COLLE); the United Mine Workers of America
(UMWA); and the Service Employees International
Union, AFL–CIO, CLC (SEIU).2
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
II. FACTUAL BACKGROUND
In September 1994,3 the Petitioner commenced an
organizing drive among hotel workers employed by the
Employer, Novotel New York (the Employer or
Novotel). Complaints of alleged irregularities regarding
the Employer’s payment of overtime wages were re-
ceived by the Petitioner from employees.4 The Peti-
tioner thereafter began an investigation into the wage
and overtime payment practices of the Employer. The
investigation included interviewing employees, and re-
viewing pay stubs, work schedules, and written work
agreements between the Employer and its employees.
On October 6, the Petitioner filed a representation
petition seeking an election in a unit of hotel workers
employed by the Employer. On October 25, the Peti-
tioner delivered a letter to the Employer’s general
manager asserting that the Employer was violating the
Fair Labor Standards Act (FLSA)5 by failing to pay
employees overtime pay for all hours worked in excess
of 40 hours per week. The Petitioner distributed copies
of the letter to unit employees. The following day, the
Employer distributed a flier to its employees stating
that its wage policies were in compliance with the law,
and urging employees to contact management if they
believed a mistake had been made in a paycheck. The
Petitioner thereafter began interviewing individual em-
ployees who claimed they had not been paid required
wages and overtime compensation.
On November 7, the Petitioner conducted an orga-
nizing meeting with petitioned-for employees. The
hearing officer found that at that meeting, the Petition-
er’s business manager and chief executive officer,
625NOVOTEL NEW YORK
6 Although the Petitioner characterizes this factual finding as
‘‘speculation,’’ it did not file exceptions thereto. We note that the
record shows that the Petitioner had conducted an unsuccessful orga-
nizing campaign at Novotel several years prior to the instant cam-
paign.
7 Sec. 216(b) of the FLSA provides, in pertinent part:
No employee shall be a party plaintiff to any such [FLSA] ac-
tion unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such action
is brought.
8 Schneider testified that the Union advised the employees that the
FLSA lawsuit was preferable because damages are not available
under the administrative proceeding, and ‘‘that they would be better
represented filing a lawsuit and having an attorney representing them
than going down and filing a case on their own with some lengthy
government bureaucracy where the case would probably take years
to be heard.’’
Peter Ward, told employees that an organizing cam-
paign required significant union resources, and that the
Petitioner would probably be reluctant to engage in an-
other organizing drive at the hotel.6 The issue of the
FLSA lawsuit was not discussed in this organizing
meeting.
A. The Petitioner and the Employees Discuss the
FLSA Action
On November 10, the Petitioner held a meeting with
the organizing committee, which is composed of em-
ployees from the petitioned-for unit. Present at the
meeting was Eve Klein, an attorney from the law firm
of Richards & O’Neil, who serve as Petitioner’s coun-
sel. Attorney Klein discussed a potential FLSA lawsuit
with the employees. A number of employees at this
time signed consent forms to participate in the FLSA
lawsuit, as required by the FLSA.7 Following Klein’s
departure from the meeting, other campaign issues
were discussed with the organizing committee.
The Petitioner thereafter distributed business cards
to unit and nonunit employees of Novotel stating that
the law firm of Richards & O’Neil had been hired by
the Petitioner to represent Novotel employees in a law-
suit to recover overtime and other wages illegally with-
held by Novotel. The business cards invited employees
who wished to be part of the lawsuit, or who would
like to talk to the lawyers about the lawsuit, to attend
meetings scheduled for November 15 and 16.
The sole issue discussed at the November 15 and 16
meetings was the FLSA lawsuit. The Petitioner’s coun-
sel, Klein, met with employees one-on-one regarding
their potential FLSA claims. Employees who wished to
join the lawsuit could execute consent forms available
at the Petitioner’s office. Some employees signed con-
sent forms at these meetings.
The Petitioner informed employees at these meetings
that a lawsuit would not be filed until a substantial
number of employees had joined the lawsuit. Peter
Ward, the Petitioner’s business manager, and Heather
Schneider, an organizer employed by the Petitioner,
testified that they further told employees that the law-
suit would be funded by the Petitioner whether or not
it won the election, that participation in the lawsuit
was not dependent on supporting the Petitioner, and
that participation in the lawsuit was open to non-
bargaining unit and former employees.
The Petitioner additionally distributed to employees
attending the November 15 and 16 meetings a memo-
randum setting forth information about the lawsuit.
The memorandum stated, in part:
What type of remedies are you entitled to?—If
you win the lawsuit, you will be entitled to re-
ceive back pay in the amount of the overtime or
cash wages Novotel failed to pay to you for the
past two or three years (three years if Novotel’s
failure to pay you was willful, which it plainly
appears to have been). In addition if Novotel’s
failure to pay you the overtime and cash wages
you were entitled to was willful, you will be
awarded an amount equivalent to what you are
owed as damages. [Emphasis added.]
The memorandum further detailed the procedures to
occur following the filing of a complaint, and advised
that any inquiries made by the Employer should be di-
rected to Richards & O’Neil. In the time period fol-
lowing these meetings, employees stopped by the Peti-
tioner’s office to ask questions about the lawsuit, and
to sign consent forms to participate in the lawsuit.
About November 30, the Employer distributed a let-
ter to employees which was addressed from the Em-
ployer to the New York State Department of Labor.
The letter invited the latter agency to audit the Em-
ployer’s payroll practices to determine whether it had
violated New York State wage and overtime laws.
There is no record evidence regarding the status of this
request, or whether such an audit was in fact con-
ducted. The Petitioner’s business manager, Ward, testi-
fied that he did not consider delaying the FLSA law-
suit pending such an audit. The hearing officer found,
rather, that the Petitioner determined that the employ-
ees would have more control over the recovery of
backpay and damages via the filing of an FLSA law-
suit. Indeed, union organizer Schneider testified that a
topic of discussion at the November 15 and 16 meet-
ings regarding the proposed FLSA lawsuit was the al-
ternative of proceeding with an investigation by New
York State authorities.8
B. The FLSA Lawsuit is Filed
On December 1, Richards & O’Neil filed a lawsuit
in U.S. District Court for the Southern District of New
York on behalf of certain named Novotel employees.
Of the 48 employees who signed consent forms and
participated in the lawsuit, 16 were members of the
Petitioner’s organizing committee, and 5 were nonunit
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Union Organizer Schneider testified as follows:
Q. [Did you discuss] whether the consent forms should be
filed with the District Court prior to the election.
A. Yes, we had told employees that we wouldn’t. Because
employees actually had to sign on to this lawsuit individually,
some of them were wary of having management find out about
it. And so we had told them all along that we wouldn’t—first
of all, we wouldn’t file the lawsuit until enough of them had
signed up so that there wouldn’t be just a couple, you know,
people. And we told them that we wouldn’t give management
the names of the individuals until after the election.
10 Bernard Rudler is the general manager of Novotel. Peter Ward,
the Petitioner’s business manager, testified that this flier and
‘‘check’’ concerned the Employer’s failure to keep its promise to
pay room attendants a flat fee for each extra room they cleaned, and
that the amount was calculated based on the assumption that each
room attendant cleaned one extra room each work day for the 2-year
period during which the Petitioner claimed that the Employer had
failed to meet its commitment.
11 Schneider testified as follows in response to the question wheth-
er the Union had ever considered waiting until after the election to
file the lawsuit:
It was discussed . . . were we ready to file for the lawsuit yet,
and we wanted to try to get it in before the election, because
we were afraid if we waited until after the election, it would
look like we were only doing it because we won. And we didn’t
want to look like the lawsuit was conditioned on the election in
any way. And—and we’d already told employees that the law-
suit was completely independent of the election . . . and we had
announced it to employees, obviously, in—in early November
and mid-November, and so once we had the complaint and ev-
erything finalized, we had no reason to hold off on it.
12 The hearing officer cited Mailing Services, 293 NLRB 565
(1989) (medical screenings); Wagner Electric Corp., 167 NLRB 532
(1967) (life insurance coverage); and Owens-Illinois, Inc., 271
NLRB 1235 (1984) (union jackets).
or former employees. The Union did not file the con-
sent forms with the court until several weeks after the
lawsuit was filed, however, because of the fear ex-
pressed by employees that the Employer could dis-
cover the identity of the employees participating in the
lawsuit by examining the consent forms.9
The Employer filed an answer denying the allega-
tions of FLSA violations. The lawsuit was pending in
Federal district court at the time of the hearing and the
Board’s oral argument. The parties stipulated that the
Petitioner has been billed by Richards & O’Neil for
$10,653 in legal fees and $437.80 in disbursements for
the FLSA lawsuit for the period of October 1994 to
April 1995.
The election was held on December 9, 8 days fol-
lowing the filing of the lawsuit. Sometime prior to the
election, the Petitioner distributed campaign literature
to employees that included a mock check in the
amount of $3,411.20 payable to ‘‘one Novotel Room
Attendant,’’ and signed by ‘‘Bernie N. Novotel.’’10
The Petitioner additionally distributed a flier to em-
ployees explaining the overtime claims of Waldorf-
Astoria hotel employees represented by the Petitioner,
and the Petitioner’s success in obtaining backpay for
these employees. There was no discussion of the in-
stant FLSA lawsuit in either of these campaign fliers.
The Petitioner also distributed a flier inviting Novotel
employees to meetings held on December 2 and 6 to
‘‘talk freely and openly with real union hotel workers’’
from the Waldorf-Astoria and other New York City
union hotels.
III. THE HEARING OFFICER’S REPORT
The Employer filed timely objections alleging that
the Petitioner’s conduct impermissibly influenced the
outcome of the election. The Employer’s Objection 1
asserted that the Petitioner’s filing of the FLSA lawsuit
and provision of free legal representation constituted
the grant of a substantial benefit to employees, and as-
serted further that the Petitioner promised employees
monetary recovery from the lawsuit.
The hearing officer recommended that the Employ-
er’s Objection 1 be overruled. The hearing officer
found that the lawsuit did not constitute an objection-
able grant of benefits because the outcome of the law-
suit was uncertain and beyond the Petitioner’s control,
citing the Board’s decision in Nestle Dairy Systems,
supra, 311 NLRB at 987. The hearing officer likewise
found that the Petitioner’s campaign literature and pro-
nouncements did not constitute an express or implied
promise that the employees would necessarily recover
any money as a result of the lawsuit. The hearing offi-
cer additionally concluded that the filing of the lawsuit
8 days before the election was not objectionable, citing
the testimony of the Petitioner’s organizer, Schneider,
that the timing of the lawsuit was a function of the
completion of the investigation into alleged pay irreg-
ularities, receipt of consent forms to participate in the
action by a sufficient number of plaintiffs, the prepara-
tion of the lawsuit by Richards & O’Neil, and statute
of limitations considerations.11
The hearing officer further observed that the Peti-
tioner’s maintenance of the lawsuit was permissible
under the two-prong test in Bill Johnson’s Restaurants
v. NLRB, 461 U.S. 731, 748–749 (1983), in which the
Court held that the Board may enjoin the filing of a
civil lawsuit as an unfair labor practice only if the law-
suit (1) lacks a reasonable basis in fact or law; and (2)
was filed with a retaliatory motive. According to the
hearing officer, the lawsuit was brought to compel the
Employer to comply with Federal law and has a rea-
sonable basis in fact or law.
Finally, the hearing officer acknowledged that the
Board traditionally has found objectionable union
grants of substantial and tangible benefits to employees
prior to an election, if the benefit granted was one that
the employee would not otherwise receive in the
course of employment.12 The hearing officer distin-
guished that precedent on the ground that here the
Union assisted employees in securing benefits already
627NOVOTEL NEW YORK
13 Black’s Law Dictionary (revd. 4th ed.)
14 Sec. 479 of the New York Judiciary Law (McKinney’s 1983)
provides:
It shall be unlawful for any person or his agent, employee or
any person acting on his behalf, to solicit or procure through so-
licitation either directly or indirectly legal business, or to solicit
or procure through solicitation a retainer, written or oral, or any
agreement authorizing an attorney to perform or render legal
services, or to make it a business so as to solicit or procure such
business, retainers or agreement.
15 The Federal Racketeer Influenced and Corrupt Organizations
Act of 1970, 18 U.S.C. § 1961 et seq.
16 The Petitioner accordingly notes, inter alia, that the instant law-
suit was filed 8 days before the election as compared to 1 day before
the election in Nestle, and that the Petitioner did not link the lawsuit
with exhortations to vote for the Petitioner.
guaranteed them under the Federal law: fair wages and
hours as defined by the FLSA. The hearing officer
concluded that finding objectionable the Petitioner’s
aid to employees to secure wage payments required by
Federal law would prevent employees from vindicating
these rights at the same time they were exercising their
Section 7 rights under the Act to have an election to
choose whether they would be represented by a union.
IV. CONTENTIONS OF THE PARTIES
A. The Employer’s Exceptions
The Employer contends that the Petitioner’s provi-
sion of financial support for the FLSA action violates
public policy against a nonparty to a lawsuit funding
that lawsuit. The Employer asserts that the Petitioner’s
conduct violates the common-law doctrine of mainte-
nance, which has been defined as ‘‘[m]alicious or offi-
cious intermeddling with a suit that does not belong to
one, by assisting either party with money or otherwise
to prosecute or defend.’’13 The Employer further con-
tends that the Petitioner impermissibly solicited poten-
tial plaintiffs to join the lawsuit, in violation of New
York State Judiciary Law Section 479.14
The Employer additionally argues that the free legal
representation by a capable law firm provided to em-
ployees by the Petitioner constitutes an objectionable
preelection grant of benefits. The Employer argues that
the employees have been awarded the benefit of hav-
ing their claims brought and argued by experienced
counsel before a judicial body. The Employer submits
that these benefits ‘‘induce among the voting unit em-
ployees a moral sense of duty to vote for the Union
as the source of their valuable benefits.’’ The Em-
ployer contends that the filing of the lawsuit 8 days
before the election plainly would influence the voting
of unit employees.
The Employer also asserts that the Petitioner en-
gaged in objectionable conduct by implicitly promising
the employees thousands of dollars in monetary awards
resulting from the lawsuit. The Employer points to the
Petitioner’s campaign literature concerning the mone-
tary recovery by other hotel workers represented by the
Petitioner, the distribution of the mock paycheck pay-
able to ‘‘[o]ne Novotel Room Attendant,’’ and the
memorandum distributed at the November 15 and 16
meetings describing the potential monetary recovery
from the FLSA lawsuit.
The Employer further contends that finding the
FLSA lawsuit to be objectionable would not impair the
Petitioner’s constitutional right of access to the courts
embodied in the First Amendment right to petition the
Government for redress of grievances. The Employer
asserts that the Petitioner has no First Amendment in-
terest in the FLSA lawsuit because it is not a party to
the lawsuit, and further that the Petitioner has no
associational standing to assert rights on behalf of
Novotel employees because they were not members of
the Petitioner at the time the lawsuit was filed.
The Employer lastly argues that this proceeding
should be remanded for a de novo hearing before a
hearing officer from outside the Board’s Region 2, in
which jurisdiction this case arose. The Employer as-
serts that the hearing officer was biased because she
was unduly influenced by the prior decision of the Re-
gional Director for Region 2, who supervises and eval-
uates the hearing officer, recommending that Objection
1 be overruled without a hearing. The Employer ac-
cordingly asserts that the Regional Director erred in
denying its prehearing request that a hearing officer
from another Board Regional Office be assigned to
hear the case.
B. The Petitioner’s Response
The Petitioner argues that its conduct is not objec-
tionable under the rule articulated by the Board in Nes-
tle Dairy Systems, supra, 311 NLRB at 987. The Board
held in Nestle that the union’s filing, during the critical
period, of a RICO15 lawsuit against the employer on
behalf of petitioned-for employees was not objection-
able conduct, and that neither the lawsuit nor the costs
attendant to its filing constituted a substantial benefit
to employees. The Petitioner asserts that Nestle is dis-
positive of Objection 1, and urges the Board to adhere
to that decision. The Petitioner further argues that its
conduct here is not objectionable even under the stand-
ards articulated by then Chairman Stephens in his dis-
senting position in Nestle.16
The Petitioner additionally argues that the provision
of legal services during the critical period was not a
benefit because the legal representation was provided
to enforce the existing rights of employees to receive
wages as required by the FLSA. Thus, the provision of
aid to vindicate these legal rights is distinct from the
objectionable provision of benefits such as life insur-
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Wagner Electric Corp., supra.
18 Mailing Services, supra.
19 The Petitioner likewise argues that it did not engage in imper-
missible solicitation for involvement in the lawsuit, in light of the
remedial goals of the FLSA, and the Supreme Court’s relaxation of
impediments to attorney advertising.
20 The Petitioner additionally argues that its filing and maintenance
of the lawsuit is lawful under the Supreme Court’s two-prong test
in Bill Johnson’s Restaurants, supra, 461 U.S. 731.
21 The brief submitted by the AFL–CIO was also joined by all the
labor organizations listed in fn. 2, supra. For ease of reference, this
brief will be referred to as the AFL–CIO brief.
22 Mailing Services, supra, 293 NLRB 565.
23 General Cable Corp., 170 NLRB 1682 (1968).
ance17 or medical screenings,18 because employees are
not entitled to such benefits under Federal law as an
incident of their employment. The Petitioner addition-
ally contends that the lawsuit cannot constitute a prom-
ise of benefits because the outcome of the lawsuit is
remote in time and outside the Petitioner’s control.
The Petitioner further maintains that Supreme Court
jurisprudence establishes that organizations which
bring or financially support lawsuits seeking to vindi-
cate the legal rights of their members or nonmembers
are engaged in a constitutionally protected form of free
speech safeguarded by the First Amendment, citing
NAACP v. Button, 371 U.S. 415 (1963); Railroad
Trainmen v. Virginia Bar, 377 U.S. 1 (1964); Mine
Workers District 12 v. Illinois State Bar Assn., 389
U.S. 217 (1967); and In Re Primus, 436 U.S. 412
(1978). Based on this precedent, the Petitioner asserts
that the common-law doctrine of maintenance is inap-
posite to this proceeding.19 The Petitioner argues that
its First Amendment right of access to the courts—and
that of Novotel’s employees—would be infringed by a
rule deeming objectionable the filing of a lawsuit dur-
ing the critical period. The Petitioner likewise asserts
that such a rule would restrain the filing of charges
with the NLRB, the Department of Labor, or the Occu-
pational Safety and Health Administration. The Peti-
tioner emphasizes that its provision of legal services is
constitutionally protected activity that serves not only
the interests of Novotel employees in securing compli-
ance with the FLSA, but additionally vindicates the in-
terests of the Petitioner and its membership by ensur-
ing that nonunion companies within the Petitioner’s ju-
risdiction do not gain a competitive advantage over
union hotels by operating outside Federal wage laws.20
C. The Position of the Amici
1. The AFL–CIO21
The AFL–CIO argues that the provision of legal
services to employees during the critical period is not
objectionable conduct, even if such services are char-
acterized as a substantial benefit. It submits that the
reason why it is objectionable to grant a substantial
benefit to employees is that such a benefit influences
voters without relation to the merits of union represen-
tation. This underlying principle is not offended by the
Petitioner’s provision here of legal services to aid em-
ployees in redressing alleged violations of Federal
labor law, it is argued, because the ‘‘benefit’’ was di-
rectly linked to the merits of the election campaign,
and was not an extraneous pecuniary inducement.
The AFL–CIO further maintains that a per se rule
against the provision of legal services during an elec-
tion campaign would be contrary to Federal labor pol-
icy. It contends that the rendering of union assistance
to employees in bringing a collective action under the
FLSA is protected conduct under both Section 7 of the
Act and the FLSA, and that an essential purpose of the
FLSA is to permit employees to join together to vindi-
cate claims for back wages. According to the AFL–
CIO, Congress could not have intended the NLRA to
suspend the rights of employees to obtain union assist-
ance during the critical period to enforce their rights
under the FLSA.
The AFL–CIO further argues that it is not, and can-
not be, objectionable for a union to provide legal as-
sistance to employees in prosecuting unfair labor prac-
tice charges during the critical period. The AFL–CIO
contends that a union is similarly free during the criti-
cal period to investigate employee complaints regard-
ing improper wage payments, advise employees of
their rights under the FLSA, and protest the employ-
er’s conduct through its campaign literature. The AFL–
CIO thus argues that professionals working directly for
a union or employed as consultants, such as organizers,
economists, auditors, or lawyers, routinely may provide
assistance to employees during an election campaign.
The AFL–CIO submits that the benefits that attended
the Petitioner’s provision here of legal assistance are
indistinguishable from the benefits arising from serv-
ices routinely provided to employees by an organizing
union during an election campaign.
The AFL–CIO further argues, along with the Peti-
tioner, that the collective activity undertaken by the
Petitioner to obtain access to the courts for the FLSA
claims of employees is protected by the First Amend-
ment under the NAACP v. Button, supra, line of cases.
2. Council on Labor Law Equality (COLLE)
COLLE argues that the conferral of approximately
$11,000 in legal services to the petitioned-for employ-
ees must be considered a substantial benefit. It argues
that such legal services provided by an experienced
law firm are at least as valuable as the conferral of
free medical testing22 or $5-gift certificates,23 both of
which have been found by the Board to be an objec-
tionable grant of benefits. The benefit conferred by
having skilled legal representatives pursuing employ-
ees’ claims is not diminished by the uncertain outcome
of litigation because a favorable courtroom result is
629NOVOTEL NEW YORK
24 Citing the four-factor test articulated by the Board in B & D
Plastics, 302 NLRB 245 (1991).
25 In contrast, the Employer’s counsel contended at oral argument
that a union’s filing of a lawsuit prior to the critical period may con-
stitute objectionable conduct.
26 30 U.S.C. § 801 et seq.
27 Citing Kerr-McGee Coal Corp. v. Federal Mine Safety Commis-
sion, 40 F.3d 1257 (D.C. Cir. 1994); and Utah Power & Light Co.
v. Secretary of Labor, 897 F.2d 447 (10th Cir. 1990).
28 They additionally argue that because the record shows that the
instant FLSA action is nonfrivolous, its filing and prosecution is
privileged under Bill Johnson’s, supra.
29 See, e.g., Protecting Workers’ Lives: A Safety and Health Guide
for Unions (1983); Goldsmith & Kerr, Worker Participation In Job
Safety and Health, Journal of Public Health Policy, at 447 (Dec.
1983).
30 Bacow, Bargaining For Job Safety And Health, 60–85 (2d ed.
1981).
31 Id. at 79–81.
32 See, e.g., Perry, Union Corporate Campaigns, 10–11 (1987)
(‘‘The central issue in that [organizing] campaign [at Consolidated
Foods Corporation] was the high reported incidence of tendinitis and
related disorders . . . and the adequacy of the corrective actions un-
dertaken to deal with the problem under the terms of a 1981 vol-
untary agreement between [the company] and the Occupational Safe-
ty and Health Administration.’’).
33 See, e.g., AFL–CIO Semi-Annual Status Report on Federal Leg-
islation: Final Summary of the 103rd Congress, AFL-CIO Depart-
ment of Legislation (Dec. 1994).
34 Shostak, Robust Unionism, 15 (1991) (‘‘Certain unions and
locals are guided by the precept that ‘only partial solutions are avail-
able at the bargaining table. The rest lie . . . in legislative and polit-
ical action.’’’) (citation omitted); Ornstein & Elder, Interest Groups,
Lobbying and Policymaking, 35, 42, 171–173, 180–182 (1978).
35 See, e.g., Ellis v. Railway Clerks, 466 U.S. 435, 453 (1984).
uncertain in all litigation. COLLE accordingly submits
that the Petitioner’s conduct is objectionable under the
Board’s traditional standards for evaluating the impact
of the conferral of benefits during the critical period,24
and that the Board should not adhere to Nestle Dairy
Systems, supra.
COLLE further argues along with the Employer that
finding objectionable the conferral of free legal rep-
resentation during the critical period does not infringe
the Petitioner’s First Amendment right of access to the
courts, as the Petitioner was neither suing on its own
behalf, nor on behalf of employees it represents under
the principle of associational standing. COLLE further
argues that neither a union’s First Amendment inter-
ests, nor the Button line of cases, guarantees a union
the right to finance a third-party lawsuit during the
critical period in a Board election, nor precludes the
Board from finding such conduct to be objectionable.
COLLE observes that the Board’s authority to regulate
elections and determine objectionable conduct is not
diminished by the Supreme Court’s decision in Bill
Johnson’s, supra, which is directed at the Board’s au-
thority to condemn a lawsuit as an unfair labor prac-
tice. COLLE further emphasizes that the Petitioner re-
mains free during the critical period to file lawsuits or
invoke administrative proceedings on its own behalf or
on behalf of its members and represented bargaining
units, and is also free to do so on behalf of nonmem-
ber Novotel employees outside the critical period.25
3. United Mine Workers of America (UMWA)
and American Federation of State, County and
Municipal Employees (AFSCME)
The UMWA explains that it is committed by its
constitution to providing legal assistance to workers
for work-related issues, including black lung, mine
safety, disability, and pension cases, and that such liti-
gation is undertaken on behalf of both UMWA rep-
resented and nonrepresented workers. The UMWA ad-
ditionally emphasizes that Federal courts have upheld
the propriety of its role at nonunion mines as the des-
ignated nonemployee safety representative under the
Mine Safety and Health Amendments Act,26 even
while it is engaging in an organizing campaign at that
nonunion mine.27 AFSCME likewise notes that it has
initiated FLSA litigation on behalf of employees it is
seeking to organize. The UMWA and AFSCME argue,
along with the Petitioner and the AFL–CIO, that such
employment-related litigation constitutes Section 7 ac-
tivity, and that labor unions enjoy a First Amendment
right to pursue such litigation on behalf of members,
as well as nonmembers and other working people.
They argue that this constitutional right of access to
the courts cannot be divested because it coincides with
the critical period in a Board election.28 They conclude
that the public policy underlying both the NLRA and
the FLSA require that the Board read these statutes
harmoniously in favor of expanding worker rights, so
as not to immunize employer illegal activity from chal-
lenge during the critical period.
V. DISCUSSION
A. The Historical Role of Unions in Vindicating
the Rights of Workers
In order to place the issue before us in its proper
context, it is important to recognize at the outset that
unions have historically undertaken a wide variety of
action to protect and advance the rights of workers.
Unions have played a central role in efforts to improve
workplace safety.29 Unions frequently negotiate collec-
tive-bargaining agreements that create programs for
identifying and rectifying safety and health issues at
the workplace,30 as well as provide safety training and
education for their own members.31 A union engaged
in an organizing campaign may use its expertise in this
area to address employees’ safety concerns and advise
them on methods to improve workplace safety.32
Unions likewise have a long history of monitoring
legislation,33 lobbying for legislation on a multitude of
workplace issues,34 and engaging in a wide variety of
litigation on behalf of workers.35 Unions further con-
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Shostak, supra at 165–166; Roberts & Wozniak, Labor’s Key
Role In Workplace Training; AFL–CIO Report on Training, 5 (1994)
(Joint apprenticeship training committees are formed through collec-
tive-bargaining agreements and spend around $500 million each year
to train some 180,000 apprentices and 500,000 journeymen at more
than 1000 locations across the United States and Canada).
37 Shostak, supra at 14–15.
38 Id. at 159.
39 Id. at 161–169.
40 Olson, Union Experiences With Worker Ownership: Legal and
Practical Issues Raised by ESOPs, TRASOPS, Stock Purchases and
Co-operatives, 1982 Wis. L. Rev. 729 (1982).
41 Gagala, Union Organizing and Staying Organized, 106–113
(1983).
42 Id. at 125–129.
43 Id. at 118–123.
44 Bok, The Regulation of Campaign Tactics in Representation
Elections Under The National Labor Relations Act, 78 Harv. L. Rev.
38, 49–55 (1964).
45 Id. at 49.
46 See, e.g., Kerr-McGee Coal, supra, 40 F.3d at 1263–1264
(UMWA officials may serve at a nonunion mine as a designated
miners’ safety representative under Sec. 813(f) of the Federal Mine
Safety and Health Amendments Act of 1977, resulting in the gain
of legitimacy and credibility among the miners by assisting them
with health and safety issues); and Thunder Basin v. Federal Mine
Safety & Health Review Commission, 56 F.3d 1275 (10th Cir. 1995).
47 See NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) (Act
does not prescribe the manner in which employees may choose to
spotlight their work-related complaints in order to bring about im-
provement); and U.S. v. Hutcheson, 312 U.S. 219, 232 (1941)
(whether union conduct is unlawful under the Clayton Act is not
predicated on ‘‘any judgment regarding the wisdom or unwisdom,
the rightness or wrongness, the selfishness or unselfishness of the
end of which the particular union activities are the means’’).
48 We do not believe, however, that the Court’s two-prong test in
Bill Johnson’s for determining whether the Board may enjoin a civil
lawsuit as an unfair labor practice is directly applicable to this pro-
ceeding. The Board is not called on in this representation proceeding
to enjoin the FLSA lawsuit as an unfair labor practice.
duct a broad array of worker education and training
ranging from craft apprenticeship training and skills
upgrading,36 retraining workers to deal with techno-
logical change,37 literacy programs,38 training in labor
law,39 to assisting workers in efforts to secure em-
ployee ownership of plants subject to closure.40
Unions engaging in organizational activity likewise
focus on educating workers regarding their rights and
the ability of unionization to improve their working
conditions. Unions thus frequently conduct studies on
wage and benefit practices of employers they are orga-
nizing in order to demonstrate to employees that
unionized workers in the same industry receive greater
wages and benefits pursuant to collective-bargaining
agreements.41 Unions additionally study employer fi-
nancial documents to demonstrate to unrepresented
employees that their employer is as profitable as
unionized firms in the same industry and thus has the
ability to pay union scale.42 These economic analyses
may include evaluation of the employer’s pension,
health, and other benefits in order to demonstrate that
unionization may improve such benefits for workers.43
Further, during organizing campaigns, unions routinely
provide assistance to employees in connection with
proceedings before the Board.
Unions engage in this broad range of activity on be-
half of both employees they represent, as well as em-
ployees they are seeking to organize. Unions engage in
this conduct, moreover, to demonstrate to employees
their suitability to serve, or continue to serve, as the
employees’ collective-bargaining representative. As
Professor Bok has observed, employees considering
unionization seldom possess much direct knowledge
concerning the union, its activities, and its potential to
bring about better wages and working conditions,
while in contrast employees are well aware of the em-
ployer’s control of wages and working conditions.44
Thus, ‘‘[t]he decision [of employees] whether or not to
support a union depends fundamentally on three ques-
tions: Are the conditions within the plant unsatisfac-
tory? To what extent can the union improve on these
conditions? Will representation by the union bring
countervailing disadvantages.’’45
Accordingly, as an agency with broad administrative
experience in conducting representation elections, we
recognize that unions engage in a variety of conduct
to demonstrate to employees their ability to improve
working conditions.46 Although it is not the province
of the Board to judge the wisdom or effectiveness of
conduct undertaken by unions to demonstrate their
suitability to represent employees,47 we nevertheless
acknowledge the historic role that unions play in this
effort.
B. Constitutional Protection of Union Conduct to
Improve Employee Working Conditions
The Supreme Court has cautioned that the Board
should be sensitive to First Amendment values in con-
struing the NLRA. Bill Johnson’s Restaurants, supra,
461 U.S. at 741. Consistent with Bill Johnson’s, we
find that several Supreme Court decisions addressing
the First Amendment rights of free speech, assembly,
and access to the courts are relevant to the issue before
us.48
The Supreme Court has established that unions and
their agents enjoy constitutional protection in confer-
ring with employees to discuss unionization and its
ability to improve employees’ working conditions.
‘‘Early in the history of the administration of the Act
the Board recognized the importance of freedom of
communication to the free exercise of organization
rights.’’ Central Hardware Co. v. NLRB, 407 U.S.
539, 543 (1972). The Court accordingly long ago de-
clared that ‘‘[t]he right thus to discuss, and inform
people concerning, the advantages and disadvantages
of unions and joining them is protected not only as
part of free speech, but as part of free assembly.’’
Thomas v. Collins, 323 U.S. 516, 532 (1945).
631NOVOTEL NEW YORK
49 The record establishes that while the majority of the petitioned-
for employees were not members of the Petitioner, some of the
Novotel employees may have been members of the Petitioner based
on their previous employment in union shops.
50 In In Re Primus, supra at 425 fn. 16, the Court described its
holding in Button as follows:
Whatever the precise limits of the holding in Button, the Court
at least found constitutionally protected the NAACP program
‘‘advising Negroes of their constitutional rights, urging them to
institute litigation of a particular kind, recommending particular
lawyers and financing such litigation[,]’’ quoting Button at 447
(White, J. concurring in part and dissenting in part). [Emphasis
added.]
Our dissenting colleague’s contention that the holding in Button was
limited solely to the solicitation of litigants, and did not encompass
the constitutionally protected right of the NAACP to finance litiga-
tion, is accordingly contradicted by the express language of the
Court.
51 See Button, supra, 371 U.S. at 420 (litigants under the NAACP
program may or may not be NAACP members); supra at 428
(NAACP program assists persons who seek legal redress of their
constitutionally guaranteed and other rights) (emphasis added); supra
at 437 (the NAACP urged Negroes aggrieved by the unconstitutional
segregation of public schools to exercise their legal rights and to re-
tain the association’s legal staff); supra at 443 (nonmember Negro
litigants participated in the NAACP program).
The constitutional protection afforded union conduct
in conferring with employees concerning the potential
of unionization to improve working conditions is not
limited to the mere narration to workers of the theo-
retical advantages of self-organization. Rather, the con-
stitutional protection extended to union conduct nec-
essarily includes the opportunity to persuade employ-
ees to action and to assist them in doing so. As the
Court instructed in Thomas v. Collins, supra at 537, in
deeming constitutionally protected the efforts of a
union official to organize workers, ‘‘‘[f]ree trade in
ideas’ means free trade in the opportunity to persuade
to action, not merely to describe facts.’’
Supreme Court jurisprudence further establishes
‘‘that collective activity undertaken to obtain meaning-
ful access to the courts is a fundamental right within
the protection of the First Amendment.’’ Transpor-
tation Workers v. Michigan Bar, 401 U.S. 576, 585
(1971). The Court has thus held that the First Amend-
ment grants a labor union the right to hire attorneys on
a salaried basis to assist its members in the assertion
of their legal rights. Mine Workers District 12 v. Illi-
nois State Bar Assn., supra, 389 U.S. at 221–222. The
Court has further held that the First Amendment pro-
tects the right of union members, through their labor
organization, to maintain a program for advising in-
jured members and their dependents to obtain legal ad-
vice, and recommending specific lawyers to handle
claims arising from their injuries, and that lawyers ac-
cepting employment under this constitutionally pro-
tected program enjoy a like constitutional protection.
Railroad Trainmen v. Virginia Bar, supra, 377 U.S. at
8. ‘‘The Court has held that the First and Fourteenth
Amendments prevent state proscription of a range of
solicitation activities by labor unions seeking to pro-
vide low cost, effective legal representation to their
members.’’ In Re Primus, supra, 436 U.S. at 412. It
is accordingly not disputed by any of the parties or the
amici that the Petitioner’s funding of workers’ FLSA
litigation would be protected by the First Amendment
had that funding been provided to its membership.
The Employer and amicus COLLE nevertheless
argue that the Petitioner’s provision of legal represen-
tation to Novotel employees is not protected by the
First Amendment, because at the time the lawsuit was
initiated the Novotel employees were not members of
the Petitioner nor represented by the Petitioner.49
While the Supreme Court has not had occasion to ad-
dress explicitly whether the First Amendment encom-
passes a labor union’s financing, as here, of litigation
brought by workers who are not members of the union,
Supreme Court jurisprudence strongly suggests that
such First Amendment interests do indeed attach to the
Petitioner’s conduct.
The Court’s decisions in the Railroad Trainmen and
Mine Workers cases establishing the First Amendment
right of unions to provide legal representation for its
members were grounded in the Court’s earlier decision
in NAACP v. Button, supra, 371 U.S. 415. The Court
held in Button that the First Amendment protected an
NAACP program recommending attorneys to its mem-
bers and others for school desegregation litigation,
where the association paid the lawyers and financed
the litigation. Id. at 431–438.50 The Court underscored
in Button that the First Amendment protection afforded
to the NAACP legal program was not limited to the
financing of litigation on behalf of members of the
NAACP.51 Rather, the Court held that the constitu-
tional protection afforded the NAACP legal program
encompassed NAACP lawyers, members, and non-
member sympathizers involved in the NAACP-funded
litigation. Id. at 434. The Court specifically warned
that the Virginia statute at issue in Button was con-
stitutionally defective because it would chill the con-
duct of any individuals—lawyers, members, or sym-
pathizers—who appeared in or had any connection
with litigation supported with NAACP funds. Id. at
434–435. Indeed, the dissent in Button assailed the ma-
jority decision for failing to distinguish between af-
fording constitutional protection to the NAACP for as-
serting the rights of its members and funding litigation
on their behalf, as contrasted with extending such con-
stitutional protection to NAACP involvement with
other individuals engaged in litigation involving claims
that the organization promoted. Id. at 462 (Harlan, J.,
dissenting). In cases issued subsequent to Button, the
Court has consistently emphasized that the constitu-
tional protection in Button encompassed the ‘‘solicita-
tion of prospective litigants, many of whom were not
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
52 See also Railroad Trainmen v. Virginia Bar, supra, 377 U.S. at
5 (constitutional protection of union program which offered legal ad-
vice to injured union members, as well as their nonmember depend-
ents).
53 Our dissenting colleague disagrees with our analysis, but fails
to give appropriate weight to the fact that the Court’s decisions in
Button and its progeny encompassed nonmembers. Further, contrary
to Member Cohen’s assertion, we have not concluded that Supreme
Court precedent bestows on the Petitioner ‘‘a First Amendment right
to finance litigation on behalf of non-member employees during the
pre-election period.’’ (Emphasis added.) Rather, we have concluded
that Court precedent strongly suggests that First Amendment inter-
ests may inhere to the financing of litigation by labor unions on be-
half of members and nonmembers alike. As the Board has been in-
structed by the Court to be sensitive to First Amendment values
when construing the NLRA, Bill Johnson’s, supra, 461 U.S. at 741,
we believe that it is surely appropriate to take those values into ac-
count in deciding whether the Petitioner engaged in objectionable
conduct by financing the FLSA litigation during the critical period.
54 Sec. 2(5) of the Act defines a ‘‘labor organization’’ in terms of
two basic requirements: first, there must be ‘‘an organization in
which employees participate; and second, it must exist for the pur-
pose . . . of dealing with employers concerning wages, hours, and
other terms and conditions of employment.’’ Alto Plastics Mfg.
Corp., 136 NLRB 850, 851 (1962).
members of the NAACP.’’ In Re Primus, supra at
423–424 (footnote omitted). As the Court stated in
Railroad Trainmen v. Virginia Bar, supra, 377 U.S. at
7, ‘‘attorneys [in Button] were actually employed by
the association which recommended them, and rec-
ommendations were made even to nonmembers.’’
We would accordingly be ignoring the language and
logic of Button if we construed its holding as limiting
constitutional protection solely to the provision by the
NAACP of legal services to its members. Certainly,
the Supreme Court did not articulate such a limitation.
Rather, the Court has held that ‘‘[t]he common thread
running through our decisions in NAACP v. Button,
Trainmen, and Mine Workers is that collective activity
undertaken to obtain meaningful access to the courts is
a fundamental right within the protection of the First
Amendment.’’ Transportation Workers v. Michigan
Bar, supra at 585. We can discern no requirement in
Supreme Court jurisprudence predicating the exercise
of such First Amendment rights on membership in the
organization.52
In light of the holding in Button affording constitu-
tional protection to the financing by the NAACP of
litigation brought by nonmembers of the NAACP, and
the Court’s specific linkage of Button with its jurispru-
dence involving labor unions, we reject the contention
of the Employer and amicus COLLE that the Petitioner
here has no First Amendment interest in providing ac-
cess to the courts for pursuit of the FLSA claims of
the nonmember Novotel employees.53 Indeed, as the
Court has made clear in Thomas v. Collins, supra, that
a union’s advocating to nonmembers of lawful means
to vindicate their legal rights is protected by the First
Amendment, Button, supra at 437, the position of the
employer and amicus COLLE would paradoxically re-
sult in the removal of constitutional protection the mo-
ment the union took the next logical step and sought
financially or otherwise to assist nonmembers in gain-
ing access to the Courts for vindication of their lawful
rights. ‘‘It was not by accident or coincidence that the
rights to freedom in speech and press were coupled in
a single guaranty with the rights of the people peace-
fully to assemble and to petition for redress of griev-
ances. All these, though not identical, are insepa-
rable.’’ Thomas v. Collins, supra at 530.
C. Statutory Protection of Union Conduct to
Improve Employee Working Conditions
‘‘Section 7 [of the Act] affirmatively guarantees em-
ployees the most basic rights of industrial self-deter-
mination, ‘the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion,’ as well as the right to refrain from these activi-
ties.’’ Emporium Capwell Co. v. Western Addition
Community Organization, 420 U.S. 50, 61–62 (1975).
It is fundamental to the statutory framework of the Act
that unions play an integral role in the fulfillment of
these Section 7 rights. Indeed, under the Act, unions
are employees joining together to exercise their Sec-
tion 7 rights.54
A union chosen as the bargaining representative of
employees occupies a central position in the collective-
bargaining system created and encouraged by the Act
to minimize industrial strife. ‘‘National labor policy
has been built on the premise that by pooling their
economic strength and acting through a labor organiza-
tion freely chosen by the majority, the employees of
an appropriate unit have the most effective means of
bargaining for improvements in wages, hours, and
working conditions.’’ NLRB v. Allis-Chalmers Mfg.
Co., 388 U.S. 175, 180 (1967).
The statutory framework of the Act likewise estab-
lishes that unions play a central role in assisting em-
ployees whom they do not represent in the exercise of
their Section 7 rights. The Court has thus warned that
employee ‘‘organization rights are not viable in a vac-
uum.’’ Central Hardware Co. v. NLRB, 407 U.S. 539,
543 (1972). Rather, the Court has emphasized for dec-
ades that ‘‘[t]he right of self-organization depends in
some measure on the ability of employees to learn the
advantages of self-organization from others.’’ NLRB v.
Babcock & Wilcox, 351 U.S. 105, 113 (1956); Central
Hardware, supra, 407 U.S. at 543; and Lechmere, Inc.
v. NLRB, 502 U.S. 527, 533 (1992). The Supreme
Court has thus specifically held that the guarantees of
Section 7 ‘‘include[] both the right of union officials
to discuss organization with employees, and the right
633NOVOTEL NEW YORK
of employees to discuss organization among them-
selves.’’ Central Hardware Co. v. NLRB, supra at 542.
Indeed, the Court has explained that labor union orga-
nizers possess Section 7 rights derivative from employ-
ees they are seeking to organize, but do not currently
represent. Lechmere, supra at 533.
The essential role of union conduct to assist workers
in the exercise of their Section 7 rights to better their
working conditions is accordingly fundamental to the
statutory scheme of the Act.
D. The Petitioner’s Provision of Legal Services to
Novotel Employees was Protected by the First
Amendment and the NLRA
At the inception of the organizing campaign, com-
plaints of alleged irregularities regarding Novotel’s
payment of overtime wages were received by the Peti-
tioner from employees. Consistent with the role unions
have traditionally played in the American labor move-
ment, the Petitioner discussed these complaints with
employees it was seeking to represent, addressed the
complaints in its campaign literature, and advised the
employees how the collective power of unionization
could aid the employees in pursuing their wage claims.
There can be no dispute that this initial union conduct
was statutorily and constitutionally protected. Central
Hardware Co. v. NLRB, supra at 542; and Thomas v.
Collins, supra at 532–534.
The Petitioner, thereafter, dispatched its counsel to
discuss with employees legal redress to rectify their
wage claims. The Petitioner’s conduct in explaining to
Novotel employees their FLSA rights and urging them
to seek redress via the FLSA lawsuit remained statu-
torily and constitutionally protected, as the Petitioner
was not limited to merely describing the FLSA to
Novotel employees. Rather, the Petitioner was privi-
leged to advocate lawful means of vindicating legal
rights under the FLSA and to persuade the employees
to act regarding their wage complaints. Thomas v. Col-
lins, supra at 537; and Button, supra at 437.
Thereafter, 48 Novotel employees agreed that they
wished to join together to seek legal redress for their
wage claims, and thereby engaged in protected, con-
certed activity under Section 7 of the Act. The Board
and the courts have long held that conduct of employ-
ees to vindicate rights to payment for overtime work,
and availing themselves of the safeguards of the Fair
Labor Standards Act, is protected, concerted activity
under Section 7 of the Act. See, e.g., Moss Planing
Mill Co., 103 NLRB 414, 418–419 (1953), enfd. 206
F.2d 557 (4th Cir. 1953); Poultrymen’s Service Corp.,
41 NLRB 444, 462–463 (1942), enfd. 138 F.2d 204,
210 (3d Cir. 1943); Lion Brand Mfg. Co., 55 NLRB
798, 799 (1944), enfd. 146 F.2d 773 (5th Cir. 1945);
Cristy Janitorial Service, 271 NLRB 857 (1984); Tri-
angle Tool & Engineering, 226 NLRB 1354, 1357 fn.
5 (1976); Joseph De Rario, DMD, P.A., 283 NLRB
592, 594 (1987); and Nu Dawn Homes, 289 NLRB
554, 558 (1988). As the Board stated long ago in Moss
Planing Mill Co., supra at 419:
[Employees] Wynne and Speare acted in concert
for their mutual aid and protection in prosecuting
their wage claims under the wage and hour law.
The right to engage in such concerted activity,
whether or not associated with a particular labor
organization, is guaranteed by Section 7 of the
Act. [Footnote omitted.]
Indeed, the Court has made clear that Section 7 of
the Act extends to employee efforts ‘‘to improve terms
and conditions of employment or otherwise improve
their lot as employees through channels outside the im-
mediate employee-employer relationship.’’ Eastex, Inc.
v. NLRB, 437 U.S. 556, 565 (1978). Section 7 thus
specifically affords protection to employees ‘‘when
they seek to improve working conditions through re-
sort to administrative and judicial forums.’’ Id. at 566.
The Court in Eastex, supra, underscored that the ex-
press language of Section 7 protects concerted activi-
ties for the broad purpose of ‘‘mutual aid or protec-
tion,’’ in addition to concerted activity for ‘‘self-orga-
nization’’ and ‘‘collective bargaining.’’ Id. at 565.
Exercising its First Amendment rights under Button,
supra, and its progeny, the Petitioner thereafter pro-
vided the funding for its counsel to investigate, pre-
pare, and file the FLSA lawsuit brought by the 48
Novotel employees. The Petitioner thus provided criti-
cal assistance to these employees who had joined to-
gether for their mutual aid and protection through re-
sort to a judicial forum. That the employees were un-
likely to have initiated the lawsuit themselves is appar-
ent from the record evidence before us, due to lack of
familiarity with legal remedies and lack of financial re-
sources. Their attempt to engage in fundamental Sec-
tion 7 activity to improve their working conditions by
pressing their wage claims through resort to a judicial
forum might well have been fruitless without union as-
sistance. This circumstance starkly illustrates the basic
statutory scheme of the Act that employees have the
right to engage in concerted activity for the purpose of
collective bargaining or other mutual aid or protection,
and that unions assist employees in exercising their
Section 7 rights. The Petitioner here did precisely what
the Act intended labor organizations to do: it aided
employees engaged in concerted activity. As Chief Jus-
tice Hughes declared in affirming the constitutionality
of the Labor Act in NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1, 33 (1937):
Long ago we stated the reason for labor organiza-
tions. We said that they were organized out of the
necessities of the situation; that a single employee
was helpless in dealing with an employer; that he
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
55 Member Cohen misstates our key distinction when he claims
that we would find union conduct to be unobjectionable if it merely
‘‘relates to’’ or ‘‘affects’’ terms and conditions of employment. As
discussed infra, a payment to Novotel employees of the back wages
allegedly due them or the outright grant of any job-related benefit
would constitute an objectionable attempt to buy votes, even though
such a payment or benefit would ‘‘relate to’’ or ‘‘affect’’ terms and
conditions of employment.
56 See Revco D.S., Inc. (DC) v. NLRB, 830 F.2d 70, 72 (6th Cir.
1987) (union offer of $100 for a prounion vote); General Cable
Corp., supra, 170 NLRB 1682 ($5 gift certificate to employees by
the union before the election was an objectionable inducement to
vote for the union); and Teletype Corp., 122 NLRB 1594 (1959)
(payment of money by rival unions to those attending preelection
meetings constituted objectionable conduct).
was dependent ordinarily on his daily wage for
the maintenance of himself and family; that if the
employer refused to pay him the wages that he
thought fair, he was nevertheless unable to leave
the employ and resist arbitrary and unfair treat-
ment; that union was essential to give laborers
opportunity to deal on an equality with their em-
ployer. [Emphasis added.]
Our dissenting colleague is willing to ‘‘assume
arguendo’’ that the employees had a Section 7 right to
‘‘listen to the Petitioner’s advocacy of a lawsuit,’’ but
is unwilling to accord any statutory protection to the
legal assistance the Union afforded the employees that
enabled the lawsuit to be filed. We find no basis in
law or policy for the dissent’s wooden construction of
the Act.
Contrary to our dissenting colleague’s position, more
than 50 years ago the Board held that the Act pro-
tected the activity of four employees who filed law-
suits against their employer under a state wage statute.
M.F.A. Milling Co., 26 NLRB 614, 622–627 (1940).
The Board specifically found that these lawsuits were
filed ‘‘through the Union’s attorney.’’ Id. at 626.
Similarly, in Moss Planing Mill, supra, 103 NLRB
at 418, the Board held that the Act protected the activ-
ity of two employees who ‘‘enlisted the assistance of
the Union to process their wage claims against the Re-
spondent.’’ The union did not merely ‘‘advocate’’ that
the employees file wage claims; the Board specifically
found that ‘‘the Union presented their wage claims to
the wage and hour office.’’ Id. In enforcing the
Board’s Order, the Fourth Circuit also took note of the
fact that the two employees ‘‘sought the aid of the
union in presenting claims against the company under
the wage and hour law.’’ 206 F.2d 557, 559 (4th Cir.
1953). In words that are clearly applicable to the case
before us, the court quoted from Section 7 and held as
follows: ‘‘The giving of aid by a labor union to an em-
ployee in prosecution of a claim for back wages is
clearly a concerted activity on the part of employees
protected by the Act.’’ Id. (Emphasis added.)
Member Cohen’s approach would sharply curtail a
union’s ability to give such aid during an organiza-
tional campaign. A union could ‘‘advocate’’ to em-
ployees that they are underpaid, but the union would
not be permitted to expend funds on a wage survey to
establish that the employer’s wage rates are below
those of its competitors; a union could ‘‘advocate’’ to
employees that their employer can afford a wage in-
crease, but the union would not be permitted to expend
funds on a financial analysis of the employer’s profit-
ability; a union could ‘‘advocate’’ to a discharged em-
ployee that he file an unfair labor practice charge, but
the union would not be permitted to expend funds on
an attorney to file a charge on his behalf or to rep-
resent him at trial. Our dissenting colleague would thus
relegate the Union’s role during an organizational cam-
paign to essentially that of a mere mouthpiece unable
to assist employees in any meaningful way toward the
achievement of their goal of improving their terms and
conditions of employment. In our view, the dissent’s
construction of the statute is contrary to what the Su-
preme Court has described as a fundamental purpose
of the Act, ‘‘eliminat[ing] the inequality of bargaining
power between employees . . . and employers.’’
NLRB v. J. Weingarten, 420 U.S. 251, 261–262
(1975).
In sum, the Petitioner’s conduct here falls well with-
in labor’s historical role, is protected by the First
Amendment to the Constitution, and is blessed by the
Act. To hold that the Petitioner’s conduct nevertheless
constitutes grounds for setting aside a Board election
would be, to say the least, highly anomalous. In the
section that follows, we will explain why Board and
court precedent does not compel such an incongruous
result.
E. The Key Distinction Between the Petitioner’s
Conduct and a Union’s Objectionable Grant
of Benefits
In light of the statutory and constitutional consider-
ations discussed above, we conclude that the Petition-
er’s financing of the employees’ FLSA lawsuit is fun-
damentally different from conduct condemned in the
precedent as an objectionable grant of benefits. Pro-
tected union conduct aimed at assisting employees in
improving their terms and conditions of employment,
or otherwise improving their lot as employees, is clear-
ly distinguishable from objectionable union conduct
which bears no connection to the employer-employee
relationship and does not fall under the aegis of the
Act and the First Amendment.55
Under established precedent, it is, of course, clearly
objectionable for a union to explicitly buy votes by
giving employees cash payments.56 Such a conferral of
benefits is totally unrelated to any effort to improve
employee conditions of employment and constitutes
635NOVOTEL NEW YORK
57 Of course, this would be a very different case if it had been es-
tablished that the Petitioner granted employees legal services for
matters unrelated to their efforts to improve their terms and condi-
tions of employment, such as a divorce proceeding or personal injury
lawsuit. See NLRB v. Madisonville Concrete Co., 552 F.2d 168 (6th
Cir. 1977) (objectionable conduct found where, prior to the election,
the union told an employee that his traffic ticket would be taken care
of and an attorney retained by the union appeared in court on behalf
of the employee at no charge to him).
Nor has it been shown that the Petitioner conditioned the contin-
ued receipt of legal representation on a favorable result in the elec-
tion. The Petitioner’s officials testified without contradiction by any
other witness that they assured employees that the lawsuit would be
funded by the Petitioner whether or not it prevailed in the election.
Although the Employer disputes this testimony by pointing out (1)
the failure of the Petitioner to state in its campaign literature the as-
surance that the lawsuit would continue even if the Petitioner lost
the election; and (2) the Petitioner’s statement that it would be reluc-
tant to expend more resources on another organizing campaign if the
Petitioner lost the election, it has not presented us with any contrary
evidence. Indeed, the Employer has presented us with no evidence
that the Petitioner told employees that it would cease providing them
with legal representation if they did not choose to be represented by
the Petitioner.
58 Union organizer Schneider testified that ‘‘we have lawyers
doing research for us constantly during union organizing drives.’’ In
this case, for example, the Petitioner directed its counsel to prepare
a memorandum to Novotel employees explaining their rights under
Continued
nothing less than an attempt to corrupt the election
process.
A second category of impermissible union conduct
is the one addressed by the Supreme Court in NLRB
v. Savair Mfg. Co., 414 U.S. 270 (1973). In Savair, the
Court held that the union’s preelection offer to waive
initiation fees to employees who agreed to sign union
recognition slips as a show of preelection support con-
stituted an impermissible inducement. The Court’s ra-
tionale was two fold. First, the Court reasoned that the
union could point to the recognition slips and paint a
false portrait of employee support for the union. Sec-
ond, the Court was concerned that employees who
signed the slips might then feel obliged to carry
through on their stated intention to support the union,
even though the slips were in fact signed to obtain the
fee waiver. 414 U.S. at 277–278.
The latter rationale of Savair, supra, forms the basis
for a third, more general category of cases in which
the union has conferred on ‘‘potential voters a finan-
cial benefit to which they would otherwise not be enti-
tled.’’ Mailing Services, supra, 293 NLRB 565. The
grant of such a benefit ‘‘subjects the donees to a con-
straint to vote for the donor union.’’ Wagner Electric
Corp., supra, 167 NLRB at 533. In Mailing Services,
supra, for example, the Board found objectionable the
union’s preelection provision of free medical screen-
ings to employees. Similarly, in Wagner Electric, the
Board found objectionable a union’s preelection provi-
sion of life insurance coverage to employees.
The common thread running through all these cases
has been well stated by the Third Circuit in NLRB v.
L & J Equipment Co., 745 F.2d 224 (1984). The court
explained that the policy prohibiting preelection bene-
fits is ‘‘rooted in the idea that an employee’s vote
should be governed only by consideration of the ad-
vantages and disadvantages of unionization in his or
her work environment, and not by any extraneous in-
ducements of pecuniary value.’’ Id. at 231. The Peti-
tioner’s conduct here did not offend this policy be-
cause the legal services it provided were integral to the
Novotel workers’ employment-related concerns and
their concerted efforts, protected by Section 7 of the
Act, to vindicate those concerns.
The main issue raised by the petitioned-for employ-
ees from the inception of the representation campaign
was Novotel’s wage practices. The Petitioner vigor-
ously pursued these concerns in its campaign literature.
The Employer likewise actively rebutted claims of im-
proper wage practices, specifically informing employ-
ees that it had invited an audit by the New York State
Department of Labor. Indeed, the Employer urged in
its campaign literature that unionization was unneces-
sary because it would promptly investigate and correct
any mistake made in an employee paycheck, while the
Petitioner pressed its contention that Novotel’s pay
practices violated the Fair Labor Standards Act.
The provision of legal services by the Petitioner,
thus, directly implicated the chief employment-related
concern of Novotel employees, proper payment of
wages, and cannot be characterized as a pecuniary in-
ducement extraneous to efforts to vindicate employ-
ment-related concerns, in contrast to the objectionable
provision of medical testing, life insurance, cash pay-
ments, or waiver of initiation fees. Based on the record
evidence, we cannot conclude that the effect of the
provision of legal services here was to ‘‘purchase’’
votes for the union by giving employees a substantial
inducement unconnected to their employment-related
concerns and their efforts to improve their working
conditions.57
Indeed, the legal representation conferred here is
similar to a variety of conduct undertaken by unions
on behalf of employees they are seeking to organize in
order to show their suitability for selection as bargain
agent. As we observed at the outset of our analysis, the
Board’s experience in conducting representation elec-
tions establishes that unions frequently confer services
during the critical period prior to an election that may
reasonably be viewed by employees as beneficial, but
which do not constitute an objectionable benefit. Such
economic analyses, education, safety advice, and the
like, as we described supra, may be the product of or-
ganizers, economists, safety experts, or lawyers, re-
tained as consultants or employed directly as union
staff members.58
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the FLSA, and counsel reviewed that memorandum with employees
at the November 15 and 16 meetings.
Schneider further testified that during the organizing drive con-
ducted by the Union immediately prior to that at Novotel, 30 em-
ployees were laid off or fired during the campaign, and the Union
provided counsel to help represent them in that case. Schneider like-
wise testified that during a previous organizing drive the Petitioner
paid the legal fees for an employee who ‘‘felt she was fired for dis-
criminatory reasons.’’
59 In his dissent, Member Cohen attempts to draw a sharp distinc-
tion between employee interests and union interests. Member Cohen
fails to recognize that a central premise of our national labor policy
is that employees and unions share the common interest of advanc-
ing the rights of workers. See, e.g., Sec. 1 of the Act.
60 The statutory protection afforded the Petitioner’s conduct is
what distinguishes this case from Sunrise Rehabilitation Hospital,
320 NLRB 212 (1995), and Perdue Farms, 320 NLRB 805 (1996),
relied on by our dissenting colleague. In Sunrise, supra, the Board
found objectionable an offer to provide employees who were not
scheduled to work on the day of the election 2 hours of pay to come
to work to vote. In Perdue Farms, supra, the Board similarly found
objectionable an offer and payment of 4 hours of pay to employees
not scheduled to work on the day of the election. There is nothing
in the Act that protects the conduct of a party to an election in offer-
ing and giving employees money merely for showing up at the polls.
Congress has created the Board as an administrative
agency to accumulate specialized knowledge in the
field of labor relations, Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951), and our charge is to
apply that knowledge to the infinite variety of work-
place controversies that may arise, in a manner that ef-
fectuates national labor policy. Beth Israel Hospital v.
NLRB, 437 U.S. 483, 500–501 (1978); and NLRB v.
Curtin Matheson Scientific, Inc., 494 U.S. 775, 786
(1990). Our administrative experience convinces us
that these activities do not implicate the long-estab-
lished proscription against the conferral by a union
during the critical period of pecuniary inducements ex-
traneous to employee’s efforts to improve their work-
ing conditions.
Further, the Board’s statutory duty to protect em-
ployees’ Section 7 rights precludes us from finding
that Novotel employees exercising their Section 7 right
to form, join, or assist labor organizations may not
during the critical period likewise exercise their Sec-
tion 7 right to engage in concerted activity for their
mutual aid or protection in pursuit of their FLSA
claims. Employees who thus complain during an orga-
nizational campaign of improprieties regarding safety,
wage payments, discriminatory employment practices,
or, to be sure, unfair labor practices, are protected by
Section 7 in seeking resort to administrative and judi-
cial forums for redress. The fundamental statutory role
of unions is to assist employees in engaging in such
Section 7 activity, and we cannot conclude that the Pe-
titioner’s fulfillment of that role during the critical pe-
riod impaired voter free choice by Novotel employ-
ees.59 Indeed, the Supreme Court has held that the
general equalization of bargaining power between em-
ployees and their employer sought by Congress in the
enactment of Section 7 of the Act encompasses ‘‘the
entire process of labor organizing, collective bargain-
ing, and enforcement of collective-bargaining agree-
ments.’’ NLRB v. City Disposal Systems, 465 U.S. 822,
835 (1984) (emphasis added).
In sum, we would be standing the statute on its head
if we were to set the election aside on the ground that
the legal services the Petitioner provided the Novotel
employees were a ‘‘financial benefit to which they
would otherwise not be entitled.’’ Mailing Services,
supra. Because the Act protects the Petitioner’s con-
duct, we conclude that the legal services it provided
Novotel employees were a benefit to which they were
entitled under national labor policy.60
F. The Sixth Circuit’s Nestle Decision
In the preceding sections of this decision, we have
set forth at length the reasons why we firmly believe
that providing legal services to employees to assist
them in their efforts to improve their terms and condi-
tions of employment is fundamentally different from
other union conduct traditionally analyzed in the case
law as an objectionable grant of benefit. We recognize,
however, that in Nestle Ice Cream Co. v. NLRB, 46
F.3d 578 (6th Cir. 1995), the Sixth Circuit examined
a union’s filing of an employment-related lawsuit
under precedent governing preelection benefits. Al-
though we do not agree with the Sixth Circuit’s analy-
sis in this respect, we nevertheless submit that our
analysis is compatible with that court’s, and that the
same result would obtain in this and other similar
cases even if they were to be analyzed under that
court’s rationale.
In Nestle, supra, the court reviewed at considerable
length Board and court cases on the effects of
preelection benefits on representation elections. Based
on its survey of the law, the court fashioned the fol-
lowing two-part test for determining whether a grant of
benefit warrants the setting aside of an election: (1)
‘‘Are the articles sufficiently valuable and desirable in
the eyes of the person to whom they are offered, to
have the potential to influence that person’s vote;’’ and
(2) ‘‘Also, the potential to influence must be to pur-
chase or unduly influence votes, that is, influence votes
without relation to the merits of the election.’’ 46 F.3d
at 583 (emphasis in original; internal quotations omit-
ted).
Under the Nestle test, we would find that the provi-
sion of legal services is sufficiently valuable to have
the potential to influence voter choice. Because the
first part of the test is satisfied, ‘‘the question becomes
whether the benefits’ influence was to ‘purchase’ votes
or was otherwise ‘undue.’ That is, we ask whether the
benefits influenced the vote without relation to the
merits of the election.’’ 46 F.3d at 584.
637NOVOTEL NEW YORK
61 We recognize that the Sixth Circuit in Nestle found that the
unions therein did not have a First Amendment interest in the RICO
lawsuit at issue in that proceeding. The issue addressed by the Sixth
Circuit in Nestle, however, was whether a union has standing to
itself assert in court legal claims of employees as their class rep-
resentative. 46 F.3d at 586. That issue is wholly distinct from wheth-
er the Petitioner has a First Amendment interest in providing mean-
ingful access to the courts for Novotel employees by providing them
with assistance and funding to bring their own lawsuit. Unlike the
circumstance at issue in Nestle, the Petitioner here is not and does
not seek to be a party to the FLSA lawsuit. Compare Auto Workers
v. Brock, 477 U.S. 274 (1986) (applying the test for determining
whether a union itself has standing to bring suit on behalf of em-
ployees); Food & Commercial Workers Local 751 v. Brown Shoe
Co., 152 LRRM 2193 (May 13, 1996) (union has associational
standing to sue on behalf of employee-members under the Worker
Adjustment and Retraining Notification Act).
For many of the reasons that we have already set
forth, we would find that the Union’s assistance to
Novotel employees was intimately related to the ques-
tion presented by the election. As discussed above, the
benefit at issue here is essentially no different from
other union benefits accorded employees during orga-
nizational campaigns that the Board has never found to
be objectionable, e.g., providing the services of orga-
nizers, economists, safety experts, and attorneys. Union
assistance of this kind is not objectionable because it
demonstrates the kind and quality of services the
Union might be expected to provide if it is elected bar-
gaining representative and thus bears directly on the
question facing every employee in the voting booth.
In Nestle, supra, the court specifically recognized
the strength of the argument that a union’s filing of an
employment-related lawsuit ‘‘might show that [the
union] would vigorously promote employees’ rights,
and thus make [the union] more worthy of selection.’’
46 F.3d at 584. On the particular facts of Nestle, how-
ever, the court ultimately found, for the following two
reasons, that the provision of legal services was objec-
tionable.
First, the court said that ‘‘the legal fees smacked of
a ‘purchase’ of votes because [the union] had no re-
sponsibility to provide the services.’’ Id. Second, the
court was fearful that employees would vote for union
representation ‘‘simply out of a desire to continue re-
ceiving the benefit.’’ Id.
Our decision today addresses both of the court’s
concerns. First, although the Petitioner here had no
legal obligation to file the FLSA lawsuit, we have
found that it had a protected right to do so. See the
discussion in section V,D, supra. Because the Nestle
Board did not rest its decision on this ground, the
court of appeals had no occasion to consider our ra-
tionale that the Petitioner’s conduct was not an imper-
missible attempt to purchase votes, but rather a pro-
tected effort to improve employee terms and conditions
of employment.61
Second, as stated in footnote 57, supra, the Em-
ployer has not presented any evidence in support of its
claim that the Petitioner conditioned the continued re-
ceipt of legal representation on a favorable result in the
election. To the contrary, the Petitioner’s officials testi-
fied without contradiction that they assured employees
that the lawsuit would be funded by the Petitioner
whether or not it prevailed in the election.
Contrary to our dissenting colleague, we find that
the filing of the lawsuit 8 days before the election did
not have the effect of unduly influencing employees in
a manner diverting attention from the merits of the
election. As the dissent concedes, the hearing officer
credited the testimony of the Petitioner’s organizer
Schneider that the timing of the filing was a function
of several factors, including the completion of the in-
vestigation of the employees’ claims, the receipt of
consent forms from a sufficient number of employees,
and the preparation of the lawsuit by the Petitioner’s
counsel. Consistent with Schneider’s testimony, the
record shows that the Petitioner and its counsel dis-
cussed the FLSA lawsuit with employees at the No-
vember 15 and 16 meetings, that employees thereafter
continued to visit the Petitioner’s office to obtain con-
sent forms, and that time was, of course, needed to
prepare the necessary legal papers for filing. Schneider
further testified that when the suit was ready for filing,
the Petitioner decided to proceed, because the Peti-
tioner had told the employees that ‘‘the lawsuit was
completely independent of the election.’’ As Schneider
testified, ‘‘[O]nce we had the complaint and everything
finalized, we had no reason to hold off on it.’’ Con-
trary to our dissenting colleague, we find that Schnei-
der’s testimony establishes a wholly legitimate expla-
nation for the timing of the filing of the suit on De-
cember 1.
Nor does the fact that the employee consent forms
necessary to officially ‘‘commence’’ the lawsuit were
not filed until several weeks after the election undercut
the Union’s legitimate reasons for the timing of the fil-
ing of the lawsuit. Again, Schneider’s credited testi-
mony provides a reasonable explanation. Schneider tes-
tified that the Petitioner had made a commitment to
employees that the consent forms would not be filed
with the court until after the election because of the
fear expressed by employees that the Employer could
discover the identities of the employees participating in
the lawsuit by examining the consent forms.
It is well established that employees have a para-
mount interest in keeping their union activities con-
fidential from their employer. See, e.g., National Tele-
phone Directory Corp., 319 NLRB 420 (1995), and
cases cited therein. Thus, it was entirely reasonable for
the Petitioner to delay filing the consent forms until
January 1995. Employees could well feel more secure
in participating in the lawsuit if their identities were
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
62 Supra at 440, and cases cited therein at fn. 19.
63 See Shaffer v. Farm Fresh, Inc., 966 F.2d 142 (4th Cir. 1992)
(outside counsel for union did not violate Virginia Code of Profes-
sional Responsibility by representing nonunion employees, whom
union was organizing, in FLSA lawsuit which union financed).
not disclosed to the Employer until after the expected
union victory in the election when the Petitioner might
be better able to protect them against any employer re-
prisals.
Accordingly, for all of the above reasons, we believe
that our decision today provides a substantial basis for
finding, even under the Sixth Circuit’s Nestle test, that
the Employer’s objection should be overruled, because
the Petitioner’s conduct was related ‘‘to the merits of
the election.’’
G. An Objectionable Promise of Benefits did
not Occur
The record evidence does not support the Employ-
er’s additional contention in Objection 1 that the Peti-
tioner engaged in objectionable conduct by promising
Novotel employees thousands of dollars in monetary
recovery from the FLSA lawsuit. Our review of the as-
sertions in the Petitioner’s campaign literature, some of
which we have set forth above, shows that the Peti-
tioner did not explicitly or implicitly promise or claim
that monetary recovery was a certainty, but rather spe-
cifically stated that recovery was dependent on whether
the lawsuit was successful. The Petitioner likewise did
not explicitly or implicitly promise or claim that
Novotel employees would obtain the same recovery as
did the unionized workers at the Waldorf-Astoria hotel.
The Petitioner’s assertions that a successful lawsuit
would bring monetary recovery, and that it had suc-
ceeded in this regard in a prior lawsuit, fall short of
a promise, implicit or otherwise, of monetary recovery
for Novotel employees. Rather, we find that these as-
sertions fall well within the range of campaign propa-
ganda whose merits employees are fully capable of
evaluating. See Midland National Life Insurance Co.,
263 NLRB 127, 132–133 (1982). We cannot conclude
that campaign propaganda distributed by the Petitioner
such as a mock paycheck (which may or may not have
been related to the FLSA claim), or a listing of the
monetary recovery of each Waldorf-Astoria employee,
would reasonably be construed by Novotel employees
as a promise of monetary recovery.
H. The Additional Contentions of the Employer,
COLLE, and the Dissent
We find meritless the Employer’s additional conten-
tion that the Petitioner’s provision of legal services
violated the common-law doctrine of maintenance. As
the Court made clear in Button, supra, ‘‘[m]alicious in-
tent was of the essence of the common-law offenses of
fomenting or stirring up litigation.’’ 371 U.S. at 439.
The Employer has made no attempt to establish mali-
cious intent on the part of the Petitioner here, and our
review of the record evidence does not support such a
finding. The Court further observed in Button that
‘‘regulations which reflect hostility to stirring up litiga-
tion have been aimed chiefly at those who urge re-
course to the courts for private gain, serving no public
interest.’’62 The Petitioner did not stand to earn any
monetary gain from the FLSA lawsuit. Rather, the
FLSA lawsuit served the public interest vindicated by
employee assertion of their rights under Section 7 of
the Act and the FLSA.63
We likewise find without merit the Employer’s
claim that the Petitioner’s assistance to Novotel em-
ployees is objectionable conduct because it violates the
rule against solicitation set forth in New York State Ju-
diciary Law. We recognize that the State of New York
has broad powers to regulate the practice of law within
its own borders. See Railroad Trainmen v. Virginia
Bar, supra, 377 U.S. at 6. Nevertheless, because the
Petitioner’s activity was integral to the Section 7 con-
duct of Novotel employees, and indeed has constitu-
tional implications, fundamental principles of Federal
preemption preclude a finding that New York State Ju-
diciary Law forecloses our holding today.
We further find meritless the Employer’s contention
that this proceeding be remanded for a de novo hearing
before a hearing officer from outside the Board’s Re-
gion 2. The Employer has not pointed to any conduct
or statements by the hearing officer, other than her
legal conclusions adverse to the Employer’s position,
showing that she was biased against the Employer, and
we are unable to identify any such evidence in the
record before us. Further, the Board followed its nor-
mal practice in this proceeding; that is, when the
Board reverses a Regional Director’s decision that a
hearing is not required on objections in a representa-
tion case, the Board remands the case to that same Re-
gional Office for a hearing.
We have additionally considered the efficacy of a
straightforward rule prohibiting the filing of a lawsuit
during the critical period, as suggested by the argu-
ments of amicus COLLE. Our dissenting colleague
likewise declares that had the Petitioner ‘‘merely wait-
ed’’ until the day after the election to file the FLSA
lawsuit, it would have ‘‘avoid[ed] the grant of benefit
problem before us.’’ Important legal and practical con-
siderations convince us that such a bright line rule is
inappropriate.
Initially, even the Employer does not advocate a
bright line rule because it took the position at oral ar-
gument that the filing of a lawsuit before the critical
period may be evidence of objectionable conduct. Fur-
thermore, even if the filing of a lawsuit prepetition
were considered nonobjectionable, maintaining that
lawsuit would certainly necessitate further legal assist-
639NOVOTEL NEW YORK
64 In this regard, Kalin Construction Co., 321 NLRB No. 94 (July
8, 1996) is distinguishable. In that case, we specifically found that
the employer’s eleventh-hour changes in the paycheck process, for
the purpose of influencing the employees’ vote in the election, gave
it an unfair advantage and had the effect of disturbing the laboratory
conditions necessary for a fair election. Under such circumstance,
the right of free speech guaranteed by the First Amendment did not
bar setting the election aside.
65 29 U.S.C. § 255.
66 29 U.S.C. § 256. See Perella v. Colonial Transit, 148 F.R.D.
147, 149 (W.D. Pa. 1991) (‘‘The statutory language makes clear that
the filing of the consent may come after the filing of the complaint,
but that a claim is not asserted, for purposes of the statute of limita-
tions, until both the complaint and the claimant’s individual written
consent are filed.’’) (citations omitted), affd. 977 F.2d 569 (3d Cir.
1992), cert. denied 507 U.S. 917 (1993).
67 Our dissenting colleague points out that, here, the filing of the
lawsuit prior to the election did not toll the statute of limitations be-
cause the employee consent forms were not filed until after the elec-
tion. However, as discussed herein, a delay in the filing of the law-
suit until after the election could still result in its being filed during
the critical period (if that period were extended by objections) and
ignores the fact that the preparation of the lawsuit occurred during
the critical period before the election.
68 As a general rule, the period during which the Board will con-
sider conduct as objectionable (the critical period) is the period be-
tween the filing of the petition and the date of the election. Ideal
Electric & Mfg. Co., 134 NLRB 1275 (1961). If the election is set
aside, the critical period for the second election begins running from
the date of the first election. Singer Co., 161 NLRB 956 fn. 2
(1966).
69 We are thus mindful of the FLSA rights of the Novotel employ-
ees implicated in this proceeding, consistent with the Supreme
Court’s admonition that the Board should accommodate other statu-
tory objectives when administering the NLRA. ‘‘[T]he Board has not
been commissioned to effectuate the policies of the Labor Relations
Act so single-mindedly that it may wholly ignore other and equally
important Congressional objectives. Frequently, the entire scope of
Congressional purpose calls for careful accommodation of one statu-
tory scheme to another . . . .’’ Southern Steamship Co. v Labor
Board, 316 U.S. 31, 47 (1942). Indeed, we are cognizant that ‘‘[t]he
Fair Labor Standards Act . . . is part of the social legislation of the
1930’s of the same general character as the National Labor Relations
Act[.]’’ Rutherford Food Corp v. McComb, 331 U.S. 722, 723
(1947).
ance during the critical period which undoubtedly
would be challenged as objectionable. Similarly, even
if the Petitioner’s attorney had waited until the day
after the election to file the lawsuit, all of the other
legal services which the Petitioner’s counsel had al-
ready provided, such as advising the employees, inves-
tigating their wage claims, and preparing the FLSA
lawsuit, would have been performed during the critical
period. Indeed, a so-called bright line rule forbidding
the filing of a lawsuit during the critical period in re-
ality would not decide the issue this case raises, be-
cause it would not resolve whether the Petitioner’s
conferral of other legal services during the critical pe-
riod constituted an objectionable grant of benefits. Fi-
nally, because the conduct of Novotel employees to
vindicate backpay claims with union assistance was
protected by Section 7 of the Act and has constitu-
tional implications, we cannot prohibit such conduct
without a specific showing that voter free choice was
impaired.64
Indeed, the holding here sought by the Employer
and COLLE would have a further anomalous result
springing from the role of the passage of time in the
life of an FLSA lawsuit and of a representation cam-
paign. Recoveries in wage and hour lawsuits may only
reach to violations occurring 2 years (or 3 if the con-
duct was found to be willful) from the filing of the
suit,65 and the statute of limitations is tolled at the
time the complaint and the consent forms are filed
with the court.66 Thus, a rule forbidding the filing of
the lawsuit during the critical period would deprive
employees of recovery under the statute of limitations
applicable to the FLSA.67 Moreover, campaigns and
the legal proceedings surrounding them can be pro-
tracted (often by factors not within the control of the
petitioned-for employees or the Union). Thus, employ-
ees will find themselves with a Hobson’s choice, for
at least some period of time, between their Section 7
right to seek the legal assistance of the Union and their
Section 7 right to seek representation by that Union.
The present case provides an example of this prob-
lem. The critical period here began on October 6,
1994, and continues until a valid election has been
held.68 Because the Employer asks the Board to invali-
date the December 9, 1994 election and to order a new
one, under Novotel’s theory, the critical period is still
in effect. If the Union and the employees are required
to forgo the filing of an FLSA complaint (and perhaps,
as argued by the Employer, even the investigation and
preparation of a lawsuit) during this period, these em-
ployees would have already lost over 18 months of any
available recovery. While the significance of the legal
issues in this case has delayed finality longer than is
usual in Board proceedings, it is not at all unusual for
an employer dissatisfied by an NLRB representational
decision to seek circuit court review through a refusal
to recognize and bargain with a certified union. Such
proceedings could easily eliminate any right to union
assistance in pursuing an FLSA remedy if the employ-
ees and the union had to delay filing the lawsuit until
the election was final to a certainty.69 Indeed, a rule
prohibiting such a filing on pain of tainting the elec-
tion might well serve as an incentive to employers to
prolong litigation of representation case issues.
I. The Employer’s Objection 4
The issue presented by Objection 4 is whether dur-
ing the critical period the Petitioner impermissibly
promised Novotel employees that, if the Petitioner won
the election, employees would receive credit under the
Petitioner’s pension plan for the years they had worked
at Novotel. On October 11, 1995, Hearing Officer
Terry A. Morgan issued a report recommending that
Objection 4 be overruled. The Employer filed excep-
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
70 We note that the hearing officer based her recommendations
‘‘[u]pon the entire record of this case, including [her] observations
of the demeanor of the witnesses.’’ The Employer’s contention that
the credibility determinations of the hearing officer had no basis in
anevaluation of the demeanor of the witnesses is accordingly
meritless.
71 Pazmino testified as follows on cross-examination:
Q. And do you remember the employer in the movie [shown
by Novotel to employees 3 days before the election] specifically
saying that nothing the Union has promised happens automati-
cally, it’s all subject to negotiation?
A. I remember.
Q. So after you saw that movie, Ms. Pazmino, didn’t you un-
derstand that union pension benefit wouldn’t be provided to you
unless a contract was negotiated.
A. Yes, I always feel that there had to be a contract had to
be made [sic], a contract had to be made.
Q. So then on December 6th, you knew that [the] union
couldn’t give you pension benefits upon winnning the election.
It needed a contract.
A. Yes, I knew.
Vira likewise testified on cross-examination as follows:
Q. [A]t the first [union] meeting you went to, you understood
that certain benefits like sick days, like wages, medical, pension
had to be negotiated in a contract.
A. Yes.
Q. Didn’t you remember at the second [union] meeting you
went to with the union that benefits such as wages holidays,
medical benefits, pension, had to be agreed to in a contract.
A. Yes.
72 The following exchange occurred:
Q. The question was that [the union official’s] statement to
you that we have to win big was separate from his statements
about the pension.
A. It was the same day he talked to me.
Q. The same conversation?
A. The same conversation.
tions and a supporting brief, and the Petitioner filed a
brief in opposition to the Employer’s exceptions and in
support of the hearing officer’s report. We have re-
viewed the record concerning Objection 4 in light of
these exceptions and briefs and we adopt the hearing
officer’s findings and recommendations with regard to
Objection 4.
Although the record evidence establishes that the
Petitioner’s pension plan grants newly organized em-
ployees credit for their past service with their em-
ployer, the record also establishes that this pension
credit is only applicable if that newly organized em-
ployer agrees in collective-bargaining negotiations to
take part in the Petitioner’s pension plan. The Em-
ployer contends that the Petitioner omitted this latter
fact when explaining its pension benefits to employees,
and thereby misled employees by promising them pen-
sion service credit contingent simply on the Petition-
er’s victory in the election and not dependent on the
parties’ collective-bargaining negotiations. The Em-
ployer presented several witnesses to support this con-
tention, including Novotel employees Velez, Pazmino,
Osei-Owusu, and Vira. The hearing officer discredited
the testimony of the Employer’s witnesses.
The Employer has excepted to the hearing’s credibil-
ity findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions un-
less the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Barton Nel-
son, Inc., 318 NLRB 712 (1995); and Stretch-Tex Co.,
118 NLRB 1359, 1361 (1957). We have carefully re-
viewed the record and find no basis for reversing the
findings.70
The hearing officer’s finding that employees were
not objectionably promised pension service credit is
buttressed by the record evidence establishing that the
campaign literature of both the Petitioner and the Em-
ployer consistently emphasized that all aspects of the
employees’ terms and conditions of employment, in-
cluding pension benefits, were subject to negotiations
if the Petitioner won the election. Indeed, both employ-
ees Pazmino and Vira, on whose testimony the Em-
ployer relies in support of Objection 4, testified that
they understood, based on the parties’ campaign rep-
resentations, that union pension benefits could only be
provided on contractual agreement by the parties.71
We further find without merit the Employer’s addi-
tional contentions in support of Objection 4. We can-
not agree with the Employer’s assertion that the testi-
mony of its witnesses, Velez, Pazmino, Osei-Owusu,
and Vira, was mutually corroborative and therefore
should have been credited by the hearing officer. Each
of these witnesses testified about different incidents,
and we are unable to find corroborative testimony by
witnesses describing separate and distinct events. Nor
can we find merit in the Employer’s contention that
the hearing officer erroneously found that Osei-Owusu
testified that a union official described to her the
Union’s pension benefits, while in the same conversa-
tion stating that the Petitioner needed to ‘‘win big’’ to
secure such benefits at the bargaining table. The record
shows that Owei-Owusu did in fact so testify on cross-
examination.72
We accordingly find the Employer’s exceptions to
be meritless, and we adopt the hearing officer’s
recommendationthat Objection 4 be overruled.
Conclusion
This proceeding implicates two fundamental duties
of the Board: to ensure the free choice of bargaining
representatives; and to protect the right of employees
to engage in or refrain from engaging in self-organiza-
tion and other concerted activities for their mutual aid
or protection. We believe our holding today effectuates
each of these statutory goals. Being ever mindful of
the Supreme Court’s instruction to ‘‘appraise carefully
the interests of both sides of any labor-management
controversy[,]’’ NLRB v. Steelworkers (Nutone, Inc.),
357 U.S. 357, 362–363 (1958), we have done so today
and find, for all the above reasons, that the Employer’s
641NOVOTEL NEW YORK
1 I join my colleagues in adopting the hearing officer’s rec-
ommendation that the Employer’s Objection 4 be overruled. 2 Hereinafter, all dates refer to 1994 unless otherwise indicated.
Objections 1 and 4 should be overruled, and that a cer-
tification of representative should issue.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Hotel and Motel Trades Council,
AFL–CIO, and that it is the exclusive collective-bar-
gaining representative of the employees in the follow-
ing appropriate unit:
INCLUDED: All full-time and regular part-time
employees of the Employer employed at its facil-
ity at 226 West 52nd Street, New York, New
York including housekeeping attendants, on-call
housekeeping attendants who worked an average
of at least 4 hours per week during the preceding
calendar quarter, lobby service agents, lead lobby
service agents, guest service agents, guest service
agent interns, lead guest service agent, front office
coordinator, guest relations coordinator, night
auditor, night manager, commis de cuisine, first
commis de cuisine, tournant, utility persons,
cashier/hostesses, buffet persons, banquet
housemen, chef de rang, commis de rang, mini
bar attendant, bartenders, general maintenance
mechanics and lead engineers. EXCLUDED: All
Accounting Department employees, all Sales de-
partment employees, all managerial employees
(including General Manager, Director of Oper-
ations, Food and Beverage Director, Human Re-
sources Director, Engineering and Housekeeping
Director, Front Office and Guest Services Direc-
tor, Chef de Cuisine, International General Man-
ager Trainee, Director of Sales, National Director
of Sales, Store Room Manager, Executive Sec-
retary), house officers, on-call housekeeping at-
tendants who did not work an average of at least
4 hours per week during the preceding calendar
quarter, all other interns, and guards, professional
employees and supervisors as defined in the Act.
MEMBER COHEN, dissenting in part.1
In Mailing Services, 293 NLRB 565 (1989), a case
that my colleagues do their best to deemphasize, the
Board summarized the law with regard to union grants
of benefits as follows:
The Board has long held that a Union’s actual
grant of benefits to potential members during the
critical period is ‘‘akin to an employer’s grant of
a wage increase in anticipation of a representation
election . . . [which] subjects the donees to a con-
straint to vote for the donor union.’’
. . . .
Although a Union may promise an existing
benefit to new members if its receipt is not condi-
tioned on the recipient’s demonstration of
preelection support, . . . it is, like an employer,
barred in the critical period prior to the election
from conferring on potential voters a financial
benefit to which they would otherwise not be en-
titled.
. . . .
We do not condemn a Union’s efforts to make
itself ‘‘more attractive as a candidate for elec-
tion,’’ but we do require that its methods of self-
enhancement exclude the direct conferral of sub-
stantial benefits on its target audience during the
critical period.
Id. at 565–566 (emphasis in original, citations omit-
ted).
Notwithstanding these principles, and maintaining
that they are merely ‘‘clarify[ing] Board law,’’ my col-
leagues today sanction a union’s grant of thousands of
dollars in legal services to unit employees, only 8 days
before a Board election. I would adhere to the Board’s
traditional principles and find that such a grant of ben-
efits is objectionable. Therefore, I dissent.
Facts
The facts, briefly stated, are as follows. The Peti-
tioner learned of possible wage violations by the Em-
ployer in early September 1994.2 It first contacted the
Employer regarding these alleged violations, and
issued its first campaign document on the subject on
October 25, the day after the parties’ Stipulated Elec-
tion Agreement was approved. On that date, the Peti-
tioner delivered a letter to then Novotel General Man-
ager Bernard Rudler stating that it had been informed
that the Employer had violated the Fair Labor Stand-
ards Act (FLSA), and that if the charges were true, ‘‘it
is very possible that individual employees are owed
thousands of dollars in back pay . . . with interest.’’
(Emp. Exh. 10; emphasis in original.) The Petitioner
distributed this letter to the unit employees.
Later in the campaign, the Petitioner distributed a
mock check in the amount of $3411.20, signed by
‘‘Bernie N. Novotel’’ and made out to ‘‘One Novotel
Room Attendant.’’ The check was accompanied by a
leaflet tying the check to the Employer’s alleged fail-
ure to pay proper wages.
The Petitioner’s counsel discussed a potential FLSA
lawsuit with the employee organizing committee on
November 10, and with other employees on November
15 and 16. By November 16, 43 of the 48 consent or
‘‘opt-in’’ forms eventually obtained by the Petitioner
had been signed.
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The FLSA has a 2-year statute of limitations, which is extended
to 3 years if a wilful violation is proven. See 29 U.S.C. § 255. Here,
plaintiffs claimed the alleged violations to be wilful.
4 See infra, slip op. at 22.
5 By April 1995, the amount had risen to $11,090.80, or $230 per
plaintiff.
6 Indeed, the Board has explicitly recognized the applicability of
the Exchange Parts rationale to cases in which the union, rather than
the employer, controls the benefit in question. See Alyeska Pipeline
Service Co., 261 NLRB 125, 127 (1982) (where union controls ac-
cess to all construction jobs in state and hence has the power to ef-
fectuate its promise, promise that members will have an advantage
over nonmembers in obtaining those jobs is coercive and hence ob-
jectionable) (citing Exchange Parts, supra, 375 U.S. at 409).
The Petitioner’s counsel filed the lawsuit on Decem-
ber 1, 8 days before the election. Union Organizer
Heather Schneider testified that the timing was deter-
mined by the following factors: the time it took to in-
vestigate the employees’ claims and to prepare the
lawsuit, the desire to protect individual employees by
waiting until there were a substantial number of plain-
tiffs, and the continued running of the statute of limita-
tions.
Regarding why the Petitioner did not wait until after
the election to file the lawsuit, Schneider testified that
‘‘we wanted to try to get it in before the election, be-
cause we were afraid if we waited until after the elec-
tion, it would look like we were only doing it because
we won.’’ (Tr. 1267.) Asked the same question, Union
Official Peter Ward cited the continued running of the
statute of limitations; Ward stated that, other than 8 or
9 days’ backpay out of a 3-year backpay period,3 he
was not aware of anything that could have been lost
by the plaintiffs by filing after the election. (Tr. 1401.)
The Petitioner’s counsel did not file the employees’
consent forms with the court—the action necessary to
toll the statute of limitations4—until January 13, 1995.
(Tr. 1264–1265; Jt. Exh. 1(c); see also P. Br. 8.)
On December 2, the day after the lawsuit was filed,
the Petitioner invited the employees to meet unionized
workers from the Waldorf-Astoria and other hotels. At
the meeting, the Petitioner distributed a flyer stating
that the Waldorf employees had ‘‘heard about the gim-
micks your management uses to cheat you out of
wages [including] unpaid overtime.’’ The flyer an-
nounced that 73 Waldorf employees had received a
total of $184,000 in backpay as a result of the union’s
pursuit of their claims, and listed the amount received
by each individual. (Emp. Exh. 18.) Another such
meeting was held on December 6.
The election took place on December 9. The tally of
ballots showed 70 votes for the Petitioner, 56 votes
against, and 10 challenged ballots. As of the election
date, the Petitioner had paid $8,145.85 in legal services
to the unit employees, or $163 per plaintiff.5 The Peti-
tioner held no further meetings inviting employees to
join the lawsuit before filing the consent forms on Jan-
uary 13, 1995. (Tr. 1398–1399.)
Analysis
The law concerning grants of benefits is well estab-
lished. Over 30 years ago, the Supreme Court held that
a grant of benefits undertaken with the purpose of in-
fringing on employees’ free choice and reasonably cal-
culated to have that effect violates the Act. See NLRB
v. Exchange Parts Co., 375 U.S. 405, 409 (1964). In
the objections context, intent need not be shown. See,
e.g., Speco Corp., 298 NLRB 439, 442 (1990); Nestle
Ice Cream Co. v. NLRB, 46 F.3d 578, 582 (6th Cir.
1995); and NLRB v. Gulf State Canners, 585 F.2d 757,
759 (5th Cir. 1978). That is, the paramount issue is
whether the conduct alleged to be objectionable had a
tendency to influence the outcome of the election. Nes-
tle, supra, 46 F.3d at 582; Gulf State Canners, supra,
585 F.2d at 759. If it did, the election must be set
aside. Id.
Most grant of benefit cases involve employer con-
duct, for it is usually the employer who controls wages
and other terms and conditions of employment. Where,
however, the union does control a particular benefit, it
is subject to the same constraints as the employer.6
The Board has long equated union grants of benefit
during the critical period with employer grants of a
wage increase during that period, and found them ob-
jectionable. See, e.g., Wagner Electric Corp., 167
NLRB 532, 533 (1967); and Mailing Services, supra.
In short, according to precedent, what is sauce for the
goose is sauce for the gander.
In policing union gifts to employees during the criti-
cal period, the Board has been quite stringent; it has
overturned elections where a union gave employees a
$5 gift certificate, see General Cable Corp., 170
NLRB 1682 (1968) (a $16 union jacket); see Owens-
Illinois, Inc., 271 NLRB 1235 (1984) (a certificate for
$500 worth of life insurance); see Wagner Electric,
supra, 167 NLRB at 533 (or free medical screening);
see Mailing Services, supra, 293 NLRB at 565–566.
Moreover, it is no defense that the benefit granted
is one routinely extended to union members. In Wag-
ner Electric, supra, the Regional Director had found
the gift of insurance coverage unobjectionable because
such coverage was an incident of union membership.
167 NLRB at 533. The Board, however, strongly dis-
agreed. It held that extending insurance coverage to the
employees prior to the election was ‘‘a tangible eco-
nomic benefit’’ that was ‘‘akin to an employer’s grant
of a wage increase in anticipation of a representation
election.’’ The Board overturned the election on the
ground that the benefit ‘‘subject[ed] the donees to a
constraint to vote for the donor union.’’ Id.
Mailing Services, supra, is to the same effect. There,
a few days before the election, the union made avail-
able to the unit employees the free medical screening
643NOVOTEL NEW YORK
7 The Petitioner asserts that another purpose of the grant of legal
services was to ensure that nonunion hotels like Novotel do not en-
gage in unfair competition with unionized hotels. See P. Br. 6. The
FLSA, however, confers neither rights nor standing upon unions; it
is not intended to serve their interests as opposed to those of individ-
ual employees. Moreover, since the lawsuit concerned only an al-
leged past failure to pay proper overtime—the Petitioner having con-
ceded that Novotel’s current practices were lawful—the Petitioner’s
$8000 gift to the Novotel employees was not necessary to strip
Novotel of some unfair advantage over its unionized competitors. Fi-
nally, even putting these factors aside, my comments in text regard-
ing the utter lack of necessity for filing the lawsuit before the elec-
tion apply with equal force to this asserted purpose.
8 Five additional plaintiffs were former unit employees or nonunit
employees.
9 There were 70 votes for the Petitioner and 56 against, with 10
challenged ballots. If all of the challenged ballots are counted as
votes against, a switch of only two votes cast would deprive the Pe-
titioner of the necessary majority.
routinely provided to employees it represented, stating,
‘‘Please take advantage of your first union benefit.’’
293 NLRB at 565. The Board again equated a union’s
grant of benefits during the critical period with an em-
ployer-granted wage increase. The Board ordered a
new election because the union had instilled in the em-
ployees a sense of obligation to the donor union and
thereby tainted employee free choice. Id. at 566 and
fn. 3. The Board emphasized that the union was free
to promise employees that they would receive this ben-
efit, but was precluded from giving it to them shortly
before the election: ‘‘We do not condemn a Union’s
efforts to make itself ’more attractive as a candidate
for election,’ but we do require that its methods of
self-enhancement exclude the direct conferral of sub-
stantial benefits on its target audience during the criti-
cal period.’’ Id. at 565–566 (citation omitted).
There can be little doubt, then, that the grant of ben-
efits at issue here is objectionable under established
principles of Board law. If a gift of a life insurance
policy or medical screening—or even a $5 gift certifi-
cate or a $16 jacket—constitutes an improper induce-
ment, plainly a gift of thousands of dollars in legal
services does as well. The Petitioner was perfectly free
to promise the employees that, should it be elected, it
would finance an FLSA suit on their behalf; what it
was not free to do was to attempt to curry favor with
the employees by filing an all-expenses paid, risk-free
lawsuit for them a week before the election.
In reaching a contrary result in this case, my col-
leagues seek to avoid an application of the principles
and case law discussed above. In addition, they ignore
the Board’s usual test in ‘‘grant of benefit’’ cases.
Under that test, in determining whether a grant of ben-
efit would tend unlawfully to influence the outcome of
an election, the Board looks to: (1) the size of the ben-
efit in relation to the stated purpose for granting it; (2)
the number of employees receiving the benefit; (3)
how the employees would reasonably view the purpose
of the benefit; and (4) the timing of the grant of bene-
fit. See B & D Plastics, 302 NLRB 245 (1991). The
Petitioner’s conduct is plainly objectionable under this
test.
The size of the benefit—over $8000, or $163 per
plaintiff, is huge, and certainly far outstrips other
union-granted benefits that the Board has found objec-
tionable. See, e.g., General Cable, supra ($5 gift cer-
tificates); and Owens-Illinois, supra, 271 NLRB 1235
($16 union jacket). Here, moreover, the Petitioner ex-
acerbated the effect of the gift by emphasizing the
magnitude of the likely payoff. It kicked off its cam-
paign with a letter announcing that ‘‘it is very possible
that individual employees are owed thousands of dol-
lars in back pay . . . with interest’’ (emphasis in
original). For a closing gambit—nicely timed in the
narrow window between the filing of the lawsuit and
the election—the Petitioner arranged meetings with
Waldorf-Astoria employees, and trumpeted the fact
that its pursuit of wage claims on these employees’ be-
half had resulted in a backpay award of nearly
$200,000. Lest any unit employee be incapable of
imagining him or herself as one of the recipients, the
flyer listed each of the 73 Waldorf beneficiaries by
name and amount received. While such intimations are
not in themselves objectionable, they operated to
heighten the value of the legal services in the employ-
ees’ minds, thereby amplifying the effect of the Peti-
tioner’s grant of benefits.
As to the stated purpose for the grant of benefits,
the Petitioner asserts that giving the employees $8000
worth of legal services during the critical period was
necessary to enable the Novotel employees to vindicate
their rights under the FLSA. Given this purpose, the
gift was not only quite large, but disproportionate.
First, the Petitioner could have helped the Novotel em-
ployees vindicate their FLSA rights, without bestowing
$8000 on them, by advising them as to how to file an
administrative claim with New York State authorities.
Second, as discussed in detail below, the employees’
rights could have been equally well vindicated—in-
deed, they would not have lost a penny in potential
backpay—had the Petitioner merely waited until after
the election to file the lawsuit.7
The second factor to be considered under B & D
Plastics, supra, is the number of employees receiving
the benefit. Here, that number, like the size of the ben-
efit, was extremely large; 43 unit employees were
plaintiffs and hence likely to be influenced by the
gift.8 The large number of recipients is particularly sig-
nificant when one considers that a switch of only two
votes could have made the difference in this election.9
In Owens-Illinois, supra, the Board found a grant of
$16 union jackets objectionable. The Board noted that
‘‘[w]hile only five or six employees received jackets
before voting, the vote tally . . . show[s] that five or
six votes could have determined the election’s re-
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Gulf State Canners, supra, involved a union-granted benefit, and
is the source of the four-factor test endorsed by the Board in B & D
Plastics, supra. See B & D, supra, 302 NLRB at 245 (setting forth
factors listed in Gulf State Canners, supra, 585 F.2d at 759).
11 In Nestle, supra, two unions sought joint representation. See 46
F.3d at 579.
12 I dissented in Sunrise, supra, arguing that the Board lacked
knowledge of certain pertinent facts and should obtain those facts
before overruling precedent. See 320 NLRB 212. (Member Fox was
not yet on the Board when Sunrise was decided.)
sults.’’ 271 NLRB at 1235. In short, a one-to-one ratio
between recipients and the votes necessary to affect the
outcome was deemed grounds for a new election.
Here, if the far more valuable gift of $163 in legal
services swayed only 1 employee out of every 20 who
accepted it—much less every employee-recipient as the
Board assumed in Owens-Illinois—it would have been
determinative of the election’s outcome. Under these
circumstances, it is clear that the union’s conduct ‘‘had
a tendency to influence the outcome of the election,’’
see NLRB v. Gulf State Canners, supra, 585 F.2d at
759,10 and the election must therefore be set aside. Id.
Turning to the third factor considered by the
Board—how the employees would reasonably view the
grant of benefit—the answer to that question is plain:
they were likely to feel a constraint to vote for the
union as a result. See Wagner Electric, supra, 167
NLRB at 533 (gift of life insurance coverage ‘‘subjects
the donees to a constraint to vote for the donor
union’’); Mailing Services, supra, 293 NLRB at 565,
566 fn. 3 (same concerning provision of free medical
screening; recipient of gift would likely have felt a
sense of obligation to the donor union); and see also
NLRB v. Savair Mfg Co., 414 U.S. 270, 279 fn. 6
(1973) (quoting Wagner with approval).
The majority asserts that this is not so because there
is no evidence that the Petitioner told the employees
that continuation of the lawsuit was dependent on a
union victory. I disagree with their analysis on two
counts. First, under Exchange Parts, supra, a grant of
a benefit immediately prior to the election is unlawful
and objectionable without regard to whether the grant-
or says that the benefit will be taken away if the elec-
tion goes against the grantor’s wishes.
My second disagreement with the majority goes to
the manner in which grants of benefits may influence
employees’ votes. My colleagues appear to proceed on
the assumption that the Novotel employees would have
been influenced by the benefit conferred only to the
extent that they were concerned with continued receipt
of that benefit. That, however, is simply not the case.
As the Sixth Circuit recognized in Nestle, supra, 46
F.3d 578, a preelection grant of benefits can influence
employees’ votes in two different ways; it may lead
employees to vote for the donor: (1) out of a desire
to continue receiving the benefit; or (2) simply because
they have received a valuable gift from that party. See
46 F.3d at 584. In Nestle, supra, the court found the
unions’11 provision of legal services objectionable not
only on the ground that the employees might vote for
the unions to ensure that they continued receiving
those services, but also because ‘‘the legal fees . . .
smacked of a ‘purchase’ of votes because the Unions
had no responsibility to provide the services.’’ 46 F.3d
at 584.
Thus, even setting aside the employees’ concerns
about the continuation, and level of financing of the
lawsuit in the event of a union loss, the Petitioner’s
gift is objectionable on the wholly independent ground
that at least some employee-plaintiffs would reason-
ably feel a sense of obligation to support an organiza-
tion that had bestowed an extremely valuable gift on
them: a gift aggregating several thousands of dollars
that might ultimately result, as the employees were
told, in a payoff of $2000 or $3000 per plaintiff. Here,
as in Nestle, supra, the employees were well aware
‘‘that they were receiving ‘something for nothing,’ and
the ‘something’ was quite valuable,’’ 46 F.3d at 584,
and it is clear to me that some votes were likely
swayed by that awareness.
My colleagues concede that the union’s gift of free
legal service had the ‘‘potential to influence voter
choice.’’ However, they say that there was no potential
‘‘to purchase or unduly influence votes.’’ In this re-
gard, they argue that the benefit here was not different
from other union benefits provided during a campaign
(e.g., the services of organizers, economists, attorneys,
and others who assist the campaign). However, there
is a clear distinction between a union’s spending
money on its own campaign, and a union’s giving
money to employees for their lawsuit. The Sixth Cir-
cuit correctly saw that the latter ‘‘smacked of a ‘pur-
chase’ of votes because the Union had no responsibil-
ity to provide the services.’’
My colleagues’ position in this case is inconsistent
with their position in Sunrise Rehabilitation Hospital,
320 NLRB 212 (1995).12 In Sunrise, my colleagues
overturned an election because the employer had of-
fered 2 hours’ pay to employees who were not sched-
uled to work on the election date but rather came to
work only to vote. My colleagues stated that employ-
ees ‘‘would reasonably perceive the 2 hours’ pay as a
favor from the Employer which the employees might
feel obligated to repay by voting against the Union.’’
Id., They endorsed the view that ‘‘[employees receiv-
ing such a monetary offer] would have to choose
among three unsatisfying courses of action: (1) accept-
ing the payment, voting for the union, and feeling like
an ingrate who bit the benefactor’s hand; (2) voting
against the union so as to avoid any such feelings of
guilt; and (3) foregoing the payments and following
their initial inclinations in voting.’’ Id. (citation omit-
645NOVOTEL NEW YORK
13 My colleagues say that there is nothing in the Act which pro-
tects the conduct of a party who gives employees money to induce
them merely to show up at the polls. However, they say that there
is something in the Act which protects a party who gives employees
money for the purpose of having employees show up and vote for
that party. I believe that there is an inconsistency. My position on
this issue is consistent with my position in the instant case. Where
an employee expends time and money traveling to a Board election,
a party may reimburse that reasonable expense. See Perdue Farms,
320 NLRB 805 (1996). However, where as here, the employees are
expending nothing, a party cannot give them ‘‘something for noth-
ing.’’ By contrast, my colleagues are inconsistent. They condemned
the employer’s payment of $27 in Perdue, and yet they give their
blessings to the Union’s benefit here of hundreds of dollars per em-
ployee.
14 Schneider also testified that ‘‘we wanted to try to get it in be-
fore the election, because we were afraid if we waited until after the
election, it would look like we were only doing it because we won.’’
Tr. 1267. This explanation is rather peculiar on its face. It suggests
that the employees would be more likely to connect the lawsuit to
the election if the lawsuit were filed after the election rather than
before. Of course, both law and experience indicate precisely the op-
posite. They tell us that employees are more likely to see a connec-
tion if a benefit is conferred before the election, i.e., during the criti-
cal period. See Exchange Parts, supra, and Ideal Electric, 134
NLRB 1275 (1962).
15 See supra, slip op. 19 (lawsuit alleges willful violation, to which
3-year limitations period applies).
16 This is so even as to the six named plaintiffs. See Perella,
supra, 148 F.R.D. at 149 (statute continued to run even as to named
plaintiff until her consent form was filed).
ted). It seems to me wholly obvious that if employees
are thought likely to be bought off by the mere offer
of 2 hours’ pay—in return for which they must come
to the worksite on their day off—they are certainly
likely to be influenced by a gift of free legal services
which might ultimately net them thousands of dollars
apiece.13
The fourth and last factor that the Board typically
considers in grant of benefit cases is timing. Here, the
hearing officer credited Organizer Schneider’s testi-
mony that the timing of the lawsuit was determined by
the time it took to investigate the employees’ claims,
the desire to protect individual employees by waiting
until there were a substantial number of plaintiffs, the
time necessary to prepare the lawsuit, and the contin-
ued running of the statute of limitations. This, how-
ever, hardly establishes that the timing of the lawsuit
was innocuous.
The first three factors listed by Schneider—i.e., all
but the running of the statute of limitations—go to
why the lawsuit was not filed sooner. The real issue
here, however, is not why the Petitioner did not file
sooner, but why it did not file later—i.e., why it could
not have waited until the day after the election to file,
thereby avoiding the grant of benefit problem before
us. On that score, the Petitioner’s explanation is whol-
ly inadequate.
Both Schneider and Union Official Peter Ward cited
the continued running of the statute of limitations as
the reason the Petitioner did not wait to file the law-
suit.14 Indeed, Ward testified that, except for 8 or 9
days’ backpay out of a 3-year backpay period,15 he
was not aware of anything that would have been lost
by waiting until after the election. (Tr. 1401.) This
statute of limitations argument is specious, however,
for as explained below, the statute was not tolled until
the consent forms were filed with the court—an action
not taken until several weeks after the election.
Where a collective action is brought under the
FLSA, the lawsuit is not considered ‘‘commenced,’’
and hence the statute of limitations is not tolled, as to
the individual claimants merely by the filing of the
complaint. To the contrary:
[A] collective or class action . . . shall be consid-
ered to be commenced in the case of any individ-
ual claimant—
(a) on the date when the complaint is filed, if
he is specifically named as a party plaintiff in the
complaint and his written consent to become a
party plaintiff is filed on such date in the court in
which the action is brought; or
(b) if such written consent was not so filed or
if his name did not so appear—on the subsequent
date on which such written consent is filed . . . .
29 U.S.C. § 256; see also 29 CFR § 790.21 (same).
That is, the statute continues to run on a particular
plaintiff’s claim until both the complaint is filed and
the plaintiff’s consent form is filed with the court. Id.;
see also Perella v. Colonial Transit, 148 F.R.D. 147,
149 (W.D. Pa. 1991) (‘‘The statutory language makes
clear that the filing of the consent may come after the
filing of the complaint, but that a claim is not asserted,
for purposes of the statute of limitations, until both the
complaint and the claimant’s individual written consent
are filed.’’) (citations omitted), affd. 977 F.2d 569 (3d
Cir. 1992), cert. denied 507 U.S. 917 (1993).
Here, the Petitioner’s counsel filed an FLSA com-
plaint on December 1, 8 days before the election, seek-
ing relief on behalf of six named plaintiffs and all
similarly situated employees who chose to opt into the
lawsuit. Exhibit 1 to Employer’s Exceptions to Re-
gional Director’s Report. It did not, however, file any
of the employee opt-in forms with the court until Janu-
ary 13, 1995, 5 weeks after the election. (P. Br. 8; see
also Jt. Exh. 1(c).) During this interim, the statute of
limitations continued to run.16 See 29 U.S.C. § 256.
In sum, the Petitioner made sure to take the action—
the filing of the complaint—that would gain the em-
ployees’ attention and induce their gratitude, the week
before the election. It did not, however, take the step
necessary to actually stop the clock on the employees’
claims until weeks later—a fact that wholly invalidates
the claim that the Petitioner filed the lawsuit before the
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The Union asserts that it did not file the employee opt-in forms
until after the election because employees were concerned about re-
vealing their identities before the election. However, even accepting
arguendo this assertion, it does not explain why the Union filed the
complaint before the election. As explained above, that action was
timed to influence the election.
18 The only case even arguably supporting the majority’s position
is Nestle Dairy Systems, 311 NLRB 987 (1993) (union’s filing of
class-action lawsuit against employer shortly before election not ob-
jectionable). Nestle, supra, however, was reversed by the Sixth Cir-
cuit. See 46 F.3d 578. It was, moreover, an aberrant decision in that
it simply ignored prior Board law and failed to employ the Board’s
traditional analysis. Indeed, Member Stephens, who applied the tradi-
tional analysis, would have found an objectionable grant of benefits.
See 311 NLRB at 989–991 (Member Stephens dissenting in relevant
part). Finally, the Board’s decision in Nestle is readily distinguish-
able. There, the record did not reveal the cost incurred by the union
in filing the lawsuit, and the Board presumed the legal fees to be
‘‘minimal at best’’ and therefore not a tangible benefit. 311 NLRB
at 988. Here, in contrast, the record makes clear that a valuable ben-
efit was conferred.
19 Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992).
20 My colleagues see ‘‘no basis in law or policy’’ for the distinc-
tion between the employee activity of filing a suit and the union ac-
tivity of financing the suit. The distinction is in Sec. 7. As Lechmere
makes plain, employees have Sec. 7 rights; unions that seek to rep-
resent them do not.
21 The record affirmatively establishes that most of the unit em-
ployees involved herein are nonmembers of the Union. The record
is silent as to the others.
election to save the employees a few days worth of
backpay.17
In sum, under the four-factor test that is used in
‘‘grant of benefit’’ cases, the grant here was clearly
objectionable.18 My colleagues attempt to evade the
weight of Board precedent and the application of the
Board’s traditional analysis by arguing that the grant of
benefits at issue here is fundamentally different from
the type of union-granted benefits that the Board has
found objectionable in prior cases. It is different, they
contend, because the Petitioner’s bestowal of $8000 in
legal services on the employees during the critical pe-
riod is conduct protected both by Section 7 of the Act
and the First Amendment to the United States Con-
stitution. In my view, the majority’s statutory and con-
stitutional arguments are unpersuasive.
The majority’s Section 7 argument appears to go
something like this: (1) The right to self-organization
set forth in Section 7 depends on employees’ ability to
learn about the potential benefits of unionization from
others, such as union organizers; (2) therefore, the Pe-
titioner had a Section 7 right to discuss the employees’
wage complaints with them, to advocate that they pur-
sue a wage claim against their employer, and to advise
them as to how unionization could aid them in pursu-
ing such a claim; and (3) the Petitioner’s right to en-
gage in these discussions implies a Section 7 right to
give the employees free legal services. An alternative
thread running through the majority’s argument sug-
gests the following chain of reasoning: (1) the employ-
ees had a Section 7 right to band together in pursuing
a wage claim against their employer; and (2) therefore,
the Petitioner had a Section 7 right to give them free
legal services to pursue such a claim.
My colleagues have engaged in a classic nonsequi-
tur. I assume arguendo that the employees had a Sec-
tion 7 right to listen to the Petitioner’s advocacy of a
lawsuit on their behalf. However, it surely does not
follow that the employees have a ‘‘right’’ to free legal
services. Further, assuming arguendo that the employ-
ees somehow had a right to receive such a benefit, it
does not follow that the Petitioner has a right to grant
it. As Lechmere19 and the statute make plain, Section
7 rights belong to employees, not to the union that
seeks to represent them. Accordingly, the Petitioner
cannot successfully defend its conduct by saying that
it had a Section 7 right to give free legal services.20
My colleagues assert that, under my analysis, unions
are not ‘‘permitted’’ to expend funds to help employ-
ees improve their terms and conditions of employment.
My colleagues err in two ways. First, my position, set
forth above, is simply that the Union has no Section
7 right to do what it did here. Secondly, the only thing
not ‘‘permitted’’ in this case (in my view) is the
Union’s financing of the employees’ lawsuit. That di-
rect gift, from the Union to the employees, is the only
matter involved herein. The ‘‘chamber of horribles,’’
paraded by my colleagues, does not involve that kind
of direct gift.
Finally, it may well be that a union which represents
employees has a Section 7 right to do things on their
behalf, on the view that the union is their representa-
tive. However, that does not help the Union here, for
it was not the representative of the employees.
The majority’s First Amendment argument is prone
to similar leaps of logic. The majority begins by noting
that unions have a constitutional right to confer with
employees, including nonmembers, and to advocate
that employees use lawful means to vindicate their
rights. See Thomas v. Collins, 323 U.S. 516 (1945). It
further notes that unions have a First Amendment right
to hire lawyers to assist union members in asserting
their legal rights. See Mine Workers v. Illinois State
Bar Assn., 389 U.S. 217, 221–222 (1967). From these
two principles, my colleagues purport to derive the
conclusion that unions have a First Amendment right
to finance litigation for nonmembers during a union
campaign—a conclusion that simply does not follow,
involving as it does unjustified extrapolations from ad-
vocacy to funding, and from a union’s activities on be-
half of members to those on behalf of nonmembers.21
The majority appears to recognize that it is on tenu-
ous ground in moving from members to nonmembers.
On this crucial point they acknowledge that the Su-
preme Court has never addressed the question whether
First Amendment protection extends to union financing
647NOVOTEL NEW YORK
22 This case, in my view, is completely distinguishable from Kalin
Construction Co. 321 NLRB No. 94 (July 8, 1996), where I would
find that the employer has a constitutional right to issue a split pay-
check to employees to convey the message that if they select a
union, their check will be reduced by the amount to be accorded to
union dues. In Kalin, the conduct that I would find constitutionally
protected involves an effort to communicate a distinct message to
employees. Here, the conduct that the majority finds constitutionally
protected involves no message whatsoever; the Union is not seeking
to communicate anything, but merely to bestow a gift of several
thousand dollars on the employees.
of lawsuits on behalf of nonmembers as opposed to
members, but state that ‘‘Supreme Court jurisprudence
strongly suggests that such First Amendment interests
do indeed attach.’’ (Slip op. at 8.)
The ‘‘jurisprudence’’ relied on does no such thing.
The ‘‘jurisprudence’’ consists essentially of the Court’s
decisions in NAACP v. Button, 371 U.S. 415 (1963),
and in In Re Primus, 436 U.S. 412 (1978). According
to the majority, Button ‘‘underscored . . . that the
First Amendment protection afforded to the NAACP
legal program was not limited to the financing of liti-
gation on behalf of members of the NAACP,’’ and
‘‘held that the constitutional protection afforded the
NAACP legal program encompassed NAACP lawyers,
members, and nonmember sympathizers involved in
the NAACP-funded litigation.’’ (Slip op. at 8.)
In fact, neither Button nor Primus advances the ar-
gument of my colleagues. In those cases, the state
sought to prohibit organizations (NAACP & ACLU)
from informing persons of their rights and from advis-
ing them to seek the assistance of attorneys working
for those organizations. The Supreme Court held that
the state was impermissibly interfering with constitu-
tional rights of free expression and association. The
fact that the NAACP & ACLU offered free legal serv-
ices was clearly not the focus of these cases. Rather,
the state was acting under its ostensible power to bar
the solicitation of legal business, whether for pay or
not. Thus, the issue was whether there was a right to
solicit, not whether there was a right to offer free legal
services. My colleagues’ bare reference to a single
phrase in Primus, supra (‘‘financing such litigation’’),
cannot and does not change the major thrust of the
Court’s opinions. In addition, the organizations there
were not seeking to have the recipients do anything in
return. By contrast, in the instant case, the Union
granted free legal services for the purpose of inducing
the employees to vote for the Union in the election
campaign.
I do not here take issue with the notion that the Peti-
tioner had a First Amendment right to urge the em-
ployees to file suit, or to finance a suit on their behalf
after it had attained representative status. Nothing in
the majority’s recitation of Supreme Court precedent
convinces me, however, that the Petitioner had a First
Amendment right to finance litigation on behalf of
nonmember employees during the preelection period—
or, stated more plainly, to give thousands of dollars in
legal services to employees whose votes it sought in
the upcoming election.22 Indeed, my colleagues cannot
bring themselves to say that the Supreme Court prece-
dents support the view that the union has a constitu-
tional right to give free legal services to nonmembers
during the preelection period. They say only that the
Court precedent ‘‘strongly suggests’’ that view. How-
ever, Supreme Court precedent directly condemns the
grant of benefits during the preelection period (Ex-
change Parts, supra, 375 U.S. 405), and the cited cases
do not even remotely suggest that free legal services
are to be exempted from that salutary rule.
In their attempt to differentiate the Petitioner’s con-
duct from other union-granted benefits long considered
objectionable by the Board, my colleagues make one
more argument in addition to the Section 7 and con-
stitutional arguments discussed above. Here, they as-
sert that the ‘‘key distinction’’ is between actions that
are related to terms and conditions of employment, and
those which are not; the first, they state, are wholly le-
gitimate, the second objectionable. This argument, it
seems to me, brings us full circle, for the majority’s
contention runs head on into Exchange Parts, supra,
the seminal case concerning grants of benefits with
which I began my discussion.
Exchange Parts condemned an employer’s grant of
new and improved benefits in the preelection period.
See 375 U.S. at 409. The benefits conferred—a new
system for computing overtime and a new vacation
schedule—obviously pertained to terms and conditions
of employment. Nonetheless, they were considered ob-
jectionable. Indeed, the classic example of an objec-
tionable grant of benefits, a wage increase, involves
the most fundamental term and condition of all.
As I noted at the outset of this dissent, most grant
of benefit cases involve employer conduct precisely
because it is the employer, not the union, who controls
the terms and conditions of employment and is there-
fore best situated to bestow favors on the employees
in the preelection period. Nonetheless, the Board has
always treated union-granted benefits, where they do
occur, as akin to employer-granted wage increases and
therefore grounds for a new election. See, e.g., Wagner
Electric, supra, 167 NLRB 532; and Mailing Services,
supra, 293 NLRB 565. Most union-granted benefits,
given that the locus of control over these matters lies
with the employer, do not directly affect terms and
conditions of employment. Where, however, a union
does grant a benefit that is related to terms and condi-
tions, I fail to see how that fact makes the gift any the
less objectionable. Surely the Board would not, for in-
stance, sanction union gifts of equipment such as safe-
ty shoes or safety glasses during the critical period, de-
spite the fact that such gifts affect the employees’
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working conditions. Nor, I would think, would my col-
leagues allow a union, in the days preceding an elec-
tion, to give employees cash to hire lawyers to pursue
an ERISA claim, a discrimination claim, or a wage and
hour suit such as that at issue here—notwithstanding
the relationship of such gifts to terms and conditions
of employment.
The key point in this case, it seems to me, is not,
as the majority stated, that the benefit conferred was
‘‘integral to the Novotel workers’ employment-related
concerns,’’ but rather that it was ‘‘clear to the employ-
ees that they were receiving ’something for nothing,’
and the ’something’ was quite valuable.’’ Nestle Ice
Cream Co., supra, 46 F.3d at 584. I remain convinced
that the very substantial gift conferred on the Novotel
employees only days before the Board election had a
tendency to influence their votes. I would, therefore, in
accord with established Board law, require a new elec-
tion so that the employees may choose whether or not
to be represented by the Petitioner in an atmosphere
untainted by inducements from either side.