S.T.A.R., Inc.,

National Labor Relations Board - Board Decisions

May 25, 2006

346 N.L.R.B. 82 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 8
82
S.T.A.R., Inc., Lighting The Way . . . and New Eng-
land Health Care Employees Union, District
1199, SEIU. Case 34–RC–2111
May 25, 2006
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board, by a three-
member panel, has considered an objection to an election
held March 23, 2005, and the hearing officer’s report
recommending disposition of it. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 74 ballots for and 47 ballots against
the Petitioner, with 4 nondeterminative challenged bal-
lots.
The Board has reviewed the record in light of the ex-
ceptions and brief, adopts the hearing officer’s findings1
and recommendations only to the extent consistent with
this Decision and Direction, and finds that the election
must be set aside and a new election held.
We find that the hearing officer erred in overruling the
Employer’s Objection 3, which alleged that the Petitioner
tainted the election by communicating to employees that
it would waive initiation fees for only those employees
who actively supported the Union. We sustain Objection
3 and set aside the election.
I. FACTS
During the critical period, Union Agent Ariel Lambe
gave a brochure to employee Michael Gallo. In relevant
part, the last page of the brochure provides:
There is a one-time $50 initiation fee. Workers who
organize to join 1199 are exempt, and begin paying
dues once a contract is won. [Emphasis added.]
The last page of the Petitioner’s brochure also sets forth
formulas for calculating union dues and includes a break-
down of how the Petitioner spends its dues revenue.
After receiving the brochure, Gallo commented to em-
ployee Daniela Kurtz: “[C]an you believe these guys get
to organize the Union and then they don’t have to pay the
initiation fee and other people will.” On his own initia-
tive, Gallo gave the brochure to Supervisor Linda Snell,
who, in turn, gave it to the Employer’s executive direc-
tor, Katie Banzhaf. Banzhaf photocopied the last page of

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
the brochure and placed a photocopy in each employee’s
mailbox approximately 2 to 3 weeks before the election.
At some point before Lambe had given the brochure to
Gallo, the Petitioner described its fee-waiver policy at an
organizing meeting in Bridgeport, Connecticut.2 Ap-
proximately 18 of the 136 unit employees attended this
meeting. Union Agent David Pickus explained to the
few employees in attendance that “there is no initiation
fee for anyone working at the facility before [the Peti-
tioner] obtains a contract.” He also told them that only
employees hired by the Employer after the Petitioner
won a contract would pay the initiation fee. Pickus dis-
tributed a copy of the Petitioner’s bylaws to the employ-
ees who attended the Bridgeport meeting. In relevant
part, the bylaws provide that “[i]n the case of new or-
ganization, those employees hired before the signing of
an initial collective bargaining agreement shall not be
required to pay an initiation fee.”
Apart from the Bridgeport meeting, the Petitioner dis-
tributed its bylaws to each employee who met with union
organizers. However, the record does not disclose how
many employees met with union organizers.
On an unspecified date during the critical period, Un-
ion Agent Pickus informed employee Gallo by telephone
that “you don’t pay any dues until we get a contract,
there is no initiation fee, that’s the policy of the Union,
as stated in the Union’s bylaws.”
II. ANALYSIS
A union interferes with free choice when it offers to
waive initiation fees for only those employees who mani-
fest support for the union before an election. See NLRB
v. Savair Mfg. Co., 414 U.S. 270 (1973). When a union
makes an ambiguous offer to waive fees, it is the union’s
“duty to clarify that ambiguity or suffer whatever conse-
quences might attach to employees’ possible interpreta-
tions of the ambiguity.” Inland Shoe Mfg. Co., 211
NLRB 724, 725 (1974); cf. Davlan Engineering, 283
NLRB 803, 805 (1987) (a union may avoid responsibility
for the improper fee-waiver statements of its solicitors by
clearly publicizing a lawful fee-waiver policy in a man-
ner reasonably calculated to reach unit employees before
they sign cards). Absent an adequate clarification, the
Board will set aside an election based on an ambiguous
offer to waive fees if the offer is reasonably susceptible
to an interpretation that violates the principles of Savair.
Rounsaville of Tampa, Inc., 224 NLRB 455, 455 (1976),
supplemented by 227 NLRB 1079 (1977); Inland Shoe

2 The record does not establish the precise date on which the Bridge-
port meeting occurred. However, the hearing officer found that it pre-
dated the occasion when Union Agent Lambe gave the brochure to
employee Michael Gallo.
S.T.A.R., INC. 83
Mfg. Co., 211 NLRB at 725; Deming Division, Crane
Co., 225 NLRB 657, 659 (1976).
As the hearing officer found, the Petitioner’s brochure
is ambiguous and reasonably susceptible to an interpreta-
tion that violates the principles of Savair. The brochure
states that “[w]orkers who organize to join 1199” are
exempt from the initiation fee, thereby communicating
the message that workers who do not “organize to join
1199” are not exempt. The brochure does not make it
clear that those employees who sit silent or advocate
against unionization during the campaign would also be
exempt. Because the ambiguous brochure is reasonably
susceptible to an interpretation that violates the princi-
ples of Savair, absent adequate clarification, the Peti-
tioner has interfered with employee free choice.3
We disagree with the hearing officer’s finding that the
Petitioner adequately clarified its fee-waiver policy. In
determining whether the Petitioner’s clarifications were
adequate, we must first consider how many employees
were affected by the Petitioner’s objectionable conduct.

3 The dissent alleges that our decision today is in tension with Lu-
theran Heritage Village-Livonia, 343 NLRB 646 (2004). We disagree.
In Lutheran Heritage, the Board set forth a framework for analyzing
employers’ handbook rules under Sec. 8(a)(1). In relevant part, Lu-
theran Heritage explains that an employer’s rule is unlawful if “em-
ployees would reasonably construe the language [of the rule] to pro-
hibit Section 7 activity.” Id., slip op. at 1–2 (emphasis added). When
determining a rule’s reasonable constructions, the Board must refrain
from reading particular phrases in isolation and must not presume im-
proper interference with employee rights. Applying these principles,
the Lutheran Heritage majority found that employees could not rea-
sonably interpret the employer’s rules against harassment and abusive
or profane language as prohibiting Sec. 7 activity. Id., slip op. at 3
(“[R]easonable employees would infer that the Respondent’s purpose in
promulgating the challenged rules was to ensure a ‘civil and decent’
workplace, not to restrict Section 7 activity.”). Hence, the Board found
that those rules were lawful.
Applying these principles here, we find that employees could rea-
sonably interpret the Petitioner’s brochure as requiring an employee to
actively organize on the Petitioner’s behalf to be eligible for a fee
waiver. In reaching this conclusion, we refrain from reading in isola-
tion particular phrases of the brochure’s last page and we do not pre-
sume improper interference with employee rights. Consistent with
Lutheran Heritage, we find the Petitioner’s fee-waiver statement, con-
tained in its brochure, to be objectionable. The rule here explicitly
deals with Sec. 7 rights, viz., the right to refrain from paying moneys to
a union. For that reason, extant Board law, cited above and not over-
ruled in Lutheran Heritage, requires that any ambiguities be clarified.
In Member Schaumber’s view, the dissent’s focus on the absence of
evidence of subjective employee beliefs is a red herring. The Employer
cannot reasonably be faulted for failing to adduce evidence on an issue,
the subjective beliefs of employees, which is considered irrelevant
under extant Board precedent.
The hearing officer overruled Objection 3 in part because she found
that the Petitioner did not “utilize the ambiguous initiation fee waiver
policy in its brochure as a campaign tool.” Absent adequate clarifica-
tion, the Petitioner interfered with employee free choice by distributing
the ambiguous brochure to Gallo regardless of whether it engaged in
additional efforts to capitalize on the brochure.
All 136 employees who were eligible to vote in the elec-
tion received a photocopy of the Petitioner’s ambiguous,
coercive brochure. The Petitioner gave the brochure to
employee Gallo, thereby interfering with his free choice.
Gallo then voluntarily gave the brochure to the Em-
ployer. Later, approximately 2 to 3 weeks before the
election, the Employer placed photocopies of the last
page of the brochure in the mailboxes of all 136 employ-
ees. Where, as here, employees receive in their mail-
boxes a special page governing the payment of union
fees, and this occurs during the heat of a union organiza-
tional campaign, we think it reasonable to infer that em-
ployees will not ignore the message.
The Petitioner did not clearly articulate a nonobjec-
tionable fee-waiver policy to these 136 employees. Ap-
proximately 18 employees—far less than the number in
the proposed unit—attended the Bridgeport meeting
where Pickus articulated a nonobjectionable fee-waiver
policy and distributed bylaws describing its policy.4 One
additional employee, Gallo, heard Pickus articulate a
nonobjectionable fee-waiver policy over the telephone.
The record does not establish that any other employees
learned that the Petitioner would, contrary to a reason-
able reading of the brochure, waive the initiation fees for
all employees hired before a first contract is reached.
Though organizers distributed a copy of the Petitioner’s
bylaws to every employee with whom they met, the re-
cord does not establish how many employees, if any, met
with union organizers other than the 19 employees dis-
cussed above. The Board does not presume dissemina-
tion of a union’s clarifications of an ambiguous offer to
waive fees.5 Thus, the coercive brochure was “cor-

4 Our dissenting colleague accuses us of rejecting the rule that a un-
ion may avoid responsibility for improper fee-waiver statements “by
clearly publicizing a lawful fee-waiver policy in a manner reasonably
calculated to reach unit employees before they sign cards.” See
Hollingsworth Management Service, 342 NLRB 556, 559 (2004). We
do not reject that rule. We apply it. The Petitioner showed that it ar-
ticulated a nonobjectionable fee-waiver policy and gave its bylaws,
which contained such a policy, to a total of 19 employees. This effort
was not reasonably calculated to reach the 136 unit employees affected
by the Petitioner’s objectionable conduct.
5 In University Towers, 285 NLRB 199 (1987), employee solicitors
made coercive statements about fee waivers. A union agent “clarified”
the union’s policy by telling employees at a union meeting that the
“original group” would not have to pay a fee, and that “original group”
referred to “[employees] that organized the unit, that are employed at
the time the unit is organized.” The Board found that the clarification
was insufficient to “neutralize” the coercive fee-waiver statements for
two reasons. First, the clarification was confusing. Second, and “in
any event,” only a limited number of unit employees heard the clarifi-
cation. In other words, the Board refused to presume dissemination of
the union’s clarifications. See also Inland Shoe Mfg. Co., 211 NLRB at
725 (finding a union agent’s clarification to be inadequate because it
was not sufficiently clear and, “[i]n any event,” because “it is by no
means clear that all employees who received the pamphlet attended this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD84
rected” for only about 19 employees.6 Consequently,
the brochure was the sole source of information about
initiation fees for as many as 117 employees.7
Contrary to the hearing officer, we will not preclude
the Employer from relying on its own dissemination of
the brochure to show that the Petitioner’s objectionable
conduct affected all 136 unit employees. See Sears Roe-
buck de Puerto Rico, 284 NLRB 258 (1987). In Sears
Roebuck de Puerto Rico, a supervisor uttered a plant-
closure threat to approximately five employees. The
union learned of the supervisor’s threat, and it dissemi-
nated news of the threat in a leaflet that it distributed to

meeting”). Our dissenting colleague asserts that University Towers and
Inland Shoe are “easily distinguishable.” However, her claimed dis-
tinction is not relevant to the issue involved herein—whether the Board
presumes that clarifications are disseminated. Consistent with these
cases, we decline to presume that the Petitioner’s clarifications were
disseminated. Cf. Erie Brush & Mfg. Corp., 340 NLRB 1386, 1386
(2003), enfd. 406 F.3d 795 (7th Cir. 2005). In light of Erie Brush’s
holding that the Board will not presume dissemination of objectionable
fee-waiver statements, it seems particularly appropriate to refuse to
presume dissemination of clarifications of objectionable fee-waiver
statements.
6 The dissent argues that the Petitioner failed to issue a broader clari-
fication because it was unaware that the Employer had widely dissemi-
nated the objectionable brochure. The Petitioner’s ignorance on this
point is irrelevant to our analysis.
7 The dissent alleges that our decision today cannot be reconciled
with Delta Brands, Inc., 344 NLRB 252 (2005). We disagree. In Delta
Brands, the Board overruled a union’s election objection because the
union failed to prove that the employer’s rule against unauthorized
solicitations could have affected the election result. During the critical
period, the rule was disseminated to only one voter, and that vote was
nondeterminative. The rule was buried in a 36-page handbook. It was
not promulgated in response to union activity. Additionally, the record
lacked evidence that the employer had enforced the rule or that the rule
had in fact deterred any employees from engaging in Sec. 7 activity.
Under those particular circumstances, the Board found that the union
failed to satisfy its burden of proving that the employer’s rule could
have affected the election result. Importantly, the Board did not hold
that objecting parties in all cases must prove that an objectionably
overbroad rule was enforced or that it actually deterred employees from
engaging in Sec. 7 activity.
The facts of this case are significantly different from those in Delta
Brands, and we reach an appropriately different result. During the
critical period, all 136 eligible voters received a photocopy of the bro-
chure’s last page. The photocopy was a single page, not a lengthy
document. Under these different circumstances, we find that the Peti-
tioner’s objectionable fee-waiver statement could have affected the
election result. We make this finding without requiring any evidence of
enforcement or that employees were actually deterred from engaging in
Sec. 7 activity. Delta Brands does not require otherwise.
The dissent also argues that we have improperly presumed: (1) that
employees in fact believed that the Petitioner had an objectionable
policy; and (2) that employees therefore voted in favor of the Petitioner.
These facts are irrelevant, and we have not presumed them. The Board
applies an objective standard when evaluating statements that allegedly
interfered with employee free choice. Cedars-Sinai Medical Center,
342 NLRB 596, 597 (2004). The relevant inquiry is whether employ-
ees would reasonably construe the rule as saying that they must support
the Union now in order to obtain the fee waiver.
numerous employees. Before the election, the employer
learned that the union had disseminated news of the su-
pervisor’s threat. Nevertheless, the employer did not
disclaim the supervisor’s threat. The union lost the elec-
tion and filed objections. The Board set aside the elec-
tion, relying on the union’s dissemination of the em-
ployer’s threat to conclude that the threat could have
affected the election result. Id. at 259 fn. 13 and 272.
Thus, the Board has permitted an objecting party to rely
on its own dissemination of a prevailing party’s objec-
tionable conduct. We do so here.8
Our dissenting colleague attempts to distinguish Sears
Roebuck de Puerto Rico, supra, on the ground that the
prevailing party in that case knew of the objecting
party’s dissemination and failed to inform voters that it
disavowed the threat. She contends that the Petitioner
was not aware that the Employer had disseminated its
coercive brochure. She argues that it is “unfair” to “pun-
ish” a prevailing party (by setting aside an election)
when that party had no reason to know that its coercive
statement reached a determinative number of voters
through the objecting party’s dissemination. She argues
that the election should stand, even though many voters
read a coercive statement, because the Petitioner did not
have an opportunity to disclaim it.
We are not persuaded by our colleague’s attempt to
distinguish Sears Roebuck de Puerto Rico. The Board in
that case did not state or imply that the result depended
on whether the party who engaged in the objectionable
conduct knew of the dissemination of that conduct. Nor
should the result depend on such knowledge. The issue
in these cases is not whether a party should be “pun-
ished.” Rather, the inquiry is whether the employees
have been exposed to conduct that interfered with their
free choice. Thus, the critical facts in this case are that
the Petitioner’s brochure contained an objectionable
statement, that the statement was distributed to 136 em-
ployees, and that the Petitioner did not, as required by
Board precedent, clarify its policy for most of these em-
ployees. The fact that the Petitioner was unaware of the
distribution, and so arguably saw no need to clarify its
policy, is beside the point. The point is that the Peti-
tioner’s ambiguous fee-waiver statement reasonably
tended to coerce a determinative number of employees in
their election choice. Consequently, and to avoid sanc-
tioning a tainted election result, we take into considera-

8 See also Delta Brands, Inc., 344 NLRB 252, 253 fn. 6. In that
case, the Board found that the objecting union could have relied on its
own dissemination of the employer’s overbroad no-solicitation policy
(had it occurred) to prove that the employer’s overbroad policy could
have affected the election result.
S.T.A.R., INC. 85
tion the fact that all of the employees were exposed to
the objectionable statement.
Our dissenting colleague also argues that a special rea-
son exists in this case for precluding the Employer from
relying on its dissemination of the Petitioner’s coercive
brochure. She claims that the Employer strategically
disseminated the Petitioner’s coercive brochure to pro-
vide a basis for an election objection in the event that the
Petitioner won the election. She argues that strategic
dissemination of another party’s coercive statements is
itself “misconduct,” and notes that parties are generally
estopped from relying on their own misconduct in sup-
port of an election objection.9 Conceding that no direct
evidence supports a factual finding that the Employer’s
dissemination was strategic, she infers this fact. How-
ever, she does not cite the record evidence from which
she draws this inference. She does imply that it is rea-
sonable to draw this inference from the fact that the
Board set aside an earlier election because the Employer
had interfered with employee free choice by granting a
bonus to employees.10 We find it unreasonable to draw
such an inference on this record, even considering the
Board’s earlier decision. The brochure’s final page con-
tained important information about dues and fees rele-
vant to the campaign. In particular, it set forth formulas
for calculating union dues. An employer attempting to
lawfully persuade its employees to vote against represen-
tation might well point out representation’s financial
costs. Absent relevant record evidence, we decline to
infer that the Employer’s dissemination of the brochure
was calculated to provide the Employer with a basis to
set aside the election.
We find that the Petitioner failed to adequately clarify
the ambiguous, coercive fee-waiver statement in its bro-
chure. Consequently, we sustain Objection 3, set aside
the election, and direct a second election.
[Direction of Second Election omitted from publica-
tion.]
MEMBER LIEBMAN, dissenting.
Setting aside the election here is inequitable, and our
decisions do not compel—or countenance—that result.
As I will explain, the Union cannot fairly be faulted,
given its clearly demonstrated intention to comply with
the law, coupled with the Employer’s own crucial role in
arguably interfering with employee free choice.

9 In Member Schaumber’s view, there is a meaningful distinction be-
tween publicizing another party’s misconduct and seeking to capitalize
on one’s own.
10 See Star, Inc., 337 NLRB 962 (2002).
I.
The Union won the election by a margin of 27 votes.
Its only objectionable conduct was giving one employee,
Michael Gallo, an ambiguously-worded brochure that
arguably ran afoul of the Savair rule with respect to the
waiver of initiation fees.1 The Union’s actual fee-waiver
policy was entirely lawful. And all of the Union’s other
communications on the subject were proper. It accu-
rately described its lawful fee-waiver policy at an orga-
nizing meeting, and it gave every employee there a copy
of its bylaws, reflecting the policy. In turn, every em-
ployee who met with union organizers was given the
bylaws. Finally, the Union gave employee Gallo—who
received the ambiguous brochure—an accurate oral ex-
planation of its fee-waiver policy, which referred to the
bylaws: “[Y]ou don’t pay any dues until we get a con-
tract, there is no initiation fee, that’s the policy of the
Union, as stated in the Union’s bylaws.”
The twist in this case is that the ambiguous last page of
the brochure was ultimately disseminated to all 136 em-
ployees eligible to vote—by the Employer, who received
the brochure from employee Gallo. On that basis, the
majority concludes that the Union interfered with em-
ployee free choice and that this conduct may have af-
fected the outcome of the election. Contrary to the hear-
ing officer, the majority expressly permits the Employer
to rely on its own dissemination of the brochure. And it
rejects application of the rule that a union may avoid
responsibility for improper fee-waiver statements “by
clearly publicizing a lawful fee-waiver policy in a man-
ner reasonably calculated to reach unit employees before
they sign cards.” Hollingsworth Management Service,
342 NLRB 556, 559 (2004), quoting Davlan Engineer-
ing, 283 NLRB 803, 804 (1987).

1 NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). I assume for the
sake of argument that the brochure’s statement violated the Savair rule,
because, as the majority finds, the statement is “reasonably susceptible
to an interpretation that violates the principles of Savair.”
The Board’s approach to such statements, however, seems in tension
with Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and its
progeny. There, over a dissent from Member Walsh and myself, the
Board adopted a new, more restrictive approach to facial challenges to
the legality of employer rules. The Lutheran Heritage Board observed
that the Board “must refrain from reading particular phrases in isola-
tion, and it must not presume improper interference with employee
rights.” Slip op. at 2.
Here, it would seem at least as reasonable to interpret the Union’s
statement (“[w]orkers who organize to join 1199 are exempt” from the
initiation fee) as a proper, if inartful, summary of the Union’s lawful
waiver policy, reflected in its bylaws: that “[i]n the case of new organi-
zation, those employees hired before the signing of an initial collective
bargaining agreement shall not be required to pay an initiation fee.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD86
II.
The facts here demonstrate that the Union did clearly
publicize its lawful fee-waiver policy in a manner rea-
sonably calculated to reach unit employees before they
signed cards. It apparently explained that policy to every
employee with whom it had direct contact—including
Gallo, the only employee who received the ambiguous
brochure from the Union—by, among other things, dis-
tributing a copy of its bylaws.2
The majority observes that, given the state of the re-
cord, it is possible that the ambiguous brochure “was the
sole source of information about initiation fees for as
many as 117 employees.” But this is only because the
Employer distributed the brochure page to all of its em-
ployees. And there is nothing in the record that demon-
strates that the Union was aware of what the Employer
had done, presumably for its own advantage (not the Un-
ion’s). Without such knowledge, of course, there was no
reason for the Union to seek to cure the ambiguous
statement in the brochure by reiterating its lawful fee-
waiver policy to all employees. As far as the Union
knew, only employee Gallo had received the brochure—
and he had also been given an accurate statement of the
Union’s policy.
The record does not contain direct evidence that the
Employer disseminated the Union’s brochure to create a
basis for setting aside the election, should it lose. But
that is surely a reasonable inference, and it weighs
against setting the election aside. Cf. B. J. Titan Service
Co., 296 NLRB 668, 668 fn. 2 (1989) (citing “well-
established principles that a ‘party to an election is ordi-
narily estopped from profiting from its own miscon-
duct’”). Notably, the Employer—through the same man-
ager involved here—has previously engaged in objec-
tionable election conduct of its own. See Star, Inc., 337
NLRB 962 (2002) (setting aside election, based on em-
ployer’s payment of preelection bonus to employees).3

2 Two cases relied upon by the majority are easily distinguishable.
In University Towers, 285 NLRB 199 (1987), the Board relied heav-
ily on the fact that there was “no evidence that the Petitioner distributed
any written materials explaining its fee-waiver policy to employees.”
Id. at 200. Here, of course, the Union did so.
In Inland Shoe Mfg. Co., 211 NLRB 724 (1974), the Board found:
(1) that the union’s constitution and bylaws failed to establish a clearly
lawful fee-waiver policy; and (2) that the constitution and bylaws pro-
visions were never communicated to employees. In this case, the Un-
ion’s bylaws did establish a lawful policy, which was provided to every
employee with whom the Union had direct contact.
3 The majority cites Sears Roebuck de Puerto Rico, 284 NLRB 258
(1987), as support for relying on the Employer’s dissemination of the
brochure in setting the election aside. But Sears Roebuck is distinguish-
able. There, the employer’s agent told employees that if the union won,
the plant would close. The threat was disseminated by the union. The
employer was aware of the dissemination, but “made no effort to in-
Despite the majority’s assertion that “many voters read
a coercive statement,” there is no evidence that any em-
ployee (other than Gallo) actually did read the brochure
page—and no evidence of an effect on employees, as the
majority demanded in the recent Delta Brands decision,
refusing to set aside an election based on an unlawful no-
solicitation rule in an employer policy manual.4 Gallo
himself apparently regarded the policy (i.e., what he pur-
ported to believe the policy was) as reflecting negatively
on the Union. It is possible that the Employer shared this
view, which might explain why it disseminated the bro-
chure. And other employees presumably inferred that
the Employer, which opposed unionization, was dissemi-
nating the Union’s supposed fee-waiver policy to per-
suade employees to vote against the Union.
Under these unusual circumstances, then, setting aside
the election unfairly punishes the Union and the emloy-
ees who supported it for conduct over which they had no
control. Accordingly, I dissent.

form its employees that [the threat] . . . did not represent its policy.”
284 NLRB at 272. Here, there is no evidence that the Union was aware
of the Employer’s distribution of the ambiguous brochure. Its actual
fee-waiver policy was lawful, and it did communicate that policy to
employees generally.
4 Delta Brands, Inc., 344 NLRB 252 (2005). There, over my dissent,
the majority departed from the Board’s traditional approach of setting
aside an election based on an employer’s mere maintenance of an
unlawful rule. See, e.g., Freund Baking Co., 336 NLRB 847 (2001).
The employer required employees to abide by the employee handbook.
New employees were required to sign the handbook. Three employees
were hired and were given the handbook with 6 months of the election
(one dudring the critical period). The election was decided by two
votes. Nevertheless, the Delta Brands majority cited the lack of “evi-
dence that the Employer enforced the rule or that any employee was in
fact deterred by the rule from engaging in Section 7 activity.” 344
NLRB 252, 253 (2005). The majority insisted that I had “presume[d]
that employees are ‘affected’ by the rule,” because there is no evidence
of such an effect.” Id. It noted that the “burden is on the objecting
party to prove its objection, and without such a presumption, that bur-
den is not satisfied here.” Id. (footnote omitted).
I see no way to reconcile the approach taken in Delta Brands with
the approach taken by the majority here. In this case, there is no evi-
dence that the Union actually maintained an unlawful fee-waiver pol-
icy—just the opposite. Nor is there any evidence that a sufficient num-
ber of employees (1) believed that the Union had an unlawful policy
and (2) therefore voted in favor of the Union. The majority simply
presumes these things.