Superior Truss & Panel, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 2001

334 N.L.R.B. 916 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
Superior Truss & Panel, Inc. and Chicago & North-
east Illinois District Council Of Carpenters,
AFL–CIO, Local Union 1027, Petitioner. Case
13–RC–20518
August 2, 2001
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS LIEBMAN, TRUESDALE,
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held on February 21, 2001, and the hearing officer’s Re-
port (pertinent portions of which are attached as an ap-
pendix) recommending disposition of them. The election
was conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 15 for and 12 against
the Petitioner, with 1 challenged ballot, a number insuffi-
cient to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and brief, has adopted the hearing officer’s find-
ings1 and recommendations,2 and finds that a certifica-
tion of representative should be issued.
The hearing officer, relying on Novotel New York, 321
NLRB 624 (1996), recommended overruling the Em-
ployer’s objection that the Union provided the employees
with an impermissible benefit during the critical period
before the election. We adopt the hearing officer’s rec-
ommendation for the reasons stated by her. Further, we
find this case distinguishable from the District of Colum-
bia Circuit Court’s decision in Freund Baking Co. v.
NLRB, 165 F.3d 928 (D.C. Cir. 1999), which called into
question the Board’s rationale in Novotel, supra. In
Freund, the union’s attorney, 1 week before the election,
filed a lawsuit on behalf of the employees against the
employer alleging violations of state wage and hour
laws. The court found this to be an impermissible bene-
fit during the critical preelection period.

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 a clear preponderance of
all the relevant evidence convinces us that they are incorrect. Stretch-
Tex Co., 118 NLRB 1359 (1957). We have carefully examined the
record and find no basis for reversing the findings.
2 The Employer contends that the Spanish translation of the Notice
of Election is deficient. We have reviewed the Employer’s offer of
proof concerning the alleged deficiencies and conclude, contrary to the
Employer’s contentions, that the notice is understandable. Bridgeport
Fittings, Inc. v. NLRB, 877 F.2d 180 (2d Cir. 1989)(finding that transla-
tions on ballots need only be understandable, not flawless). We further
find, in agreement with the hearing officer, that there was no confusion
among the voters regarding the election because of the use of English-
only ballots or the use of the translated notice.
In this case, according to the Employer’s witness,
whose credibility as a witness the hearing officer found
to be “compromised,” Hispanic employees complained at
a union meeting 2 weeks before the election about a su-
pervisor’s treatment of them. The Union’s attorney told
them that if “we had problems like that or discriminatory
remarks from these individual supervisors or if they
changed anything at the company that we wasn’t already
doing, to write this stuff down on a piece of paper, date
it, and they, you know, they’d file suit afterwards, you
know, after the election.” In addition, the Union’s attor-
ney, after the election, in a letter to the Employer dated
March 14, 2001, objected to the Employer’s threatened
discharge of employees because of their alleged incorrect
social security numbers, and stated that it had filed an
unfair labor practice charge against the Employer alleg-
ing that it had unlawfully threatened employees with
layoff and termination and that it would take additional
action against the Employer if it followed through with
the threatened layoff.
Clearly, the union attorney’s letter to the Employer,
sent after the election, cannot serve as grounds for a
valid objection. Head Ski Co., 192 NLRB 217, 218
(1971). In any event, even if the letter had been sent dur-
ing the critical period or could be considered as relevant
to the Union’s conduct during the critical period, the
court in Freund, supra, recognized that the filing of un-
fair labor practice charges against an employer by a un-
ion during an organizational campaign, which occurs
“frequently (and uncontroversially)” is permissible be-
cause it is “litigation necessary to protect the electoral
process.” 165 F.3d at 934.
Further, with regard to the union attorney’s conduct at
the union meeting, there was no evidence, as the hearing
officer noted, that a lawsuit was filed before the election.
Even if, as the Employer contends, the Union promised
employees that it would take legal action, there is no
evidence that the Union ever contemplated the filing of a
lawsuit similar to that in Freund. To the contrary, the
subsequent letter from the Union’s attorney to the Em-
ployer, on which the Employer relies, clearly reveals that
the Union contemplated the filing of unfair labor practice
charges. Under these circumstances, we find that, even
applying the rationale of Freund, the Employer did not
meet its burden of establishing that the Union provided
an impermissible benefit to the employees.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Chicago & Northeast Illinois District
Council of Carpenters, AFL–CIO, Local Union 1027 and
that it is the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
334 NLRB No. 115
SUPERIOR TRUSS & PANEL, INC. 917

All full-time, regular part-time production and mainte-
nance employees, including working foremen, em-
ployed by Superior Truss & Panel, Inc. at the Markham
facility currently located at 2204 W. 159th, Markham,
Illinois; excluding all truckdrivers, office clerical em-
ployees and guards, professional employees and super-
visors as defined in the Act.

APPENDIX
HEARING OFFICER’S REPORT ON OBJECTIONS
Pursuant to a petition filed on January 10, 2001, and a Stipu-
lated Election Agreement approved on January 24, 2001, an
election by secret ballot was conducted on February 21, 2001,
under the supervision of the Regional Director for Region 13 of
the National Labor Relations Board in the following unit of
employees:1

All full-time and regular part-time production and mainte-
nance employees, including working foremen, employed by
Superior Truss & Panel, Inc. at the Markham facility currently
located at 2204 W. 159th, Markham, Illinois; excluding all
truckdrivers, office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.

The results of the election were as follows:2

Approximate number of eligible voters….….…..28
Void ballots……………………………………...0
Votes cast for the Petitioner……………….……15
Votes cast against the participating labor
organization……………………………..…...12
Valid votes counted…………………………….27
Challenged ballots……………………………….1

Number of valid votes counted plus
challenged ballots……………….………..…..28

Challenged ballots were not sufficient in number to affect the
results of the election.
On March 19, 2001, the Employer filed timely objections to
conduct affecting the results of the election (attached hereto as
Emp. Exh. 1) [omitted from publication], a copy thereof having
been served on the Petitioner (the Union). Pursuant to Section
102.69 of the Board’s Rules and Regulations (the Rules), the
Regional Director conducted an investigation of the objections.
Following investigation of the objections, the Regional Direc-
tor, on April 4, 2001, issued a Report on Objections and Notice
of Hearing, ordering, pursuant to Section 102.69 of the Rules,
that a hearing be held before a designated hearing officer to
resolve the issues raised by the objections. The Notice of Hear-
ing further provided that the hearing officer prepare and serve
on the parties a report containing resolutions of the credibility

1 The payroll period for eligibility was the period ending January 23,
2001.
2 The ballots were impounded after the election on February 21,
2001. The ballots were counted and the tally of ballots was issued to
the parties on March 12, 2001.
of witnesses, findings of fact, and recommendations to the
Board as to the disposition of the objections.
On April 11 and 12, 2001, in Chicago, Illinois, a hearing in
this matter was conducted by Lisa Friedheim-Weis, hearing
officer. At this hearing, counsel for the Union, the Employer,
and the Regional Director appeared and fully participated. All
parties were afforded an opportunity to be heard, to examine
and cross-examine witnesses, to produce all relevant evidence
bearing on the issues of this case, and to thereafter submit
briefs.
After careful consideration of the entire record in this case,
including my observations of the manner and demeanor of the
witnesses as well as the arguments and contentions of the par-
ties made at the hearing and in posthearing briefs, I make the
following credibility resolutions, findings of fact, and recom-
mendations to the Board as to the disposition of the issues.3
The Objections
Objection 1: Unauthorized Individuals Voted in the Election
The Employer’s first objection reads as follows:

Employees who are apparently not authorized to work in the
United States voted in the election.

As a preliminary matter, I find that the Employer failed to
put any evidence into the record to substantiate that any of its
employees are not authorized to work in the United States. To
the contrary, Bryce Welty, the Employer’s vice president of
manufacturing, testified that he had “no knowledge that any of
our employees are illegal.”
Furthermore, as stated in its brief, the Employer’s admitted
choice in permitting “questionable” employees to vote and later
objecting to their inclusion necessarily forecloses the objection
itself. Pursuant to the Board’s Casehandling Manual, Repre-
sentation Proceedings (the Casehandling Manual), Section
11362.1, challenges to voters “must have been made before the
questioned ballots were dropped into the ballot box. . . . [t]he
merits of postelection challenges, whether filed as such or in
the guise of objections, should not be considered.” See also
Section 11392.5. Since the Employer knew prior to the elec-
tion that some of its employees had questionable social security
documentation, as will be discussed below, it had the opportu-
nity to challenge each voter prior to the election or during the
election before the employee dropped his ballot in the box.
Since it did not do so, the Employer is barred by the Casehan-
dling Manual, Sections 11362.1 and 11392.5 from raising the
issue as a postelection objection.
Even assuming arguendo that the Employer did prove that
the disputed employees were undocumented alien workers, or
that the Casehandling Manual was inapplicable to the instant
3 The factual findings herein are based on the record as a whole, in-
cluding Friedheim-Weis’ observation of witnesses and examination of
exhibits received into evidence. All testimony has been reviewed and
evaluated in light of the demeanor of witnesses, the logical probability
of testimony, and the record as a whole. Where any single witness has
testified in contradiction to the findings contained herein, his testimony
has been discredited as being either in or of itself not worthy of cre-
dence or because it conflicted with the weight of other credible evi-
dence. Walker’s, 159 NLRB 1159 (1966).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
facts, I would still recommend overruling the Employer’s ob-
jection based on Supreme Court and Board law.
On January 30, 2001, the Employer submitted its Excelsior
list with 28 names to Region 13 of the National Labor Relations
Board (the Board) pursuant to the Parties’ stipulated election
agreement. William Welty, president of the Employer, testified
that when he submitted the Employer’s Excelsior list, he knew
that some of the employees had social security numbers that,
according to the Social Security Administration (SSA), did not
match their names. Welty4 stated that this knowledge did not
prevent him from listing those employees as employees of the
Employer who would be eligible to vote in the upcoming
NLRB election.5 In fact, Welty testified that he knew about
some of the employees’ undocumented or mismatched social
security numbers as early as May 1999.
The record evidence shows that the Employer received a let-
ter from the SSA dated May 18, 1999, in which the SSA in-
formed the Employer that more than ten percent of its 1998
employee tax forms did not show social security numbers that
matched SSA records. Welty testified that, upon receiving the
May 18, 1999 letter from the SSA, the Employer contacted the
affected employees and told them to provide updated informa-
tion, including social security cards or alien cards and new I-9
forms.
Welty testified that one year later, however, the problem
with unmatched social security numbers submitted by some
employees was not yet solved. By letter dated June 1, 2000, the
SSA informed the Employer that more than ten percent of its
1999 employee tax forms did not show social security numbers
that matched SSA records. Welty testified that the Employer
again promptly contacted the affected employees and had them
provide updated social security information. Welty testified
that, despite the receipt of these letters from the SSA notifying
the Employer that some of its employees did not have proper
resident documentation, he chose to allow all 28 employees to
vote in the NLRB election.
The Employer contends for the first time that undocumented
alien workers cannot be considered employees within the
meaning of the NLRA. However, the Supreme Court has al-
ready considered and rejected this argument, expressly deter-
mining that undocumented alien workers are “employees”
within the meaning of the NLRA. Sure-Tan, Inc. v. NLRB, 467
U.S. 883, 891 (1984).6 The Board has consistently upheld this

4 William Welty will herein be referred to as Welty to distinguish
him from witness Bryce Welty.
5 In response to a question from the hearing officer regarding
whether Welty’s knowledge of the problems with some employees’
social security numbers had affected his compilation of the Excelsior
list, Welty testified: “No. No. We had no conflict with the Union on
the individuals who were supposed to be in the bargaining unit from the
voting standpoint. . . . And, we agreed upon the names of the 28 guys.
There was no dispute. No argument. No one was kicked out.”
6 Despite the assertions of Employer’s counsel to the contrary, the
courts have enforced the Board’s Order, holding that Sure-Tan has not
been altered by the passage of the Immigration Reform and Control Act
of 1986 (IRCA), and that IRCA does not alter the definition of “em-
ployee” for the purposes of determining who is eligible to vote in an
election. Kolkka Tables & Finnish-American Saunas, supra.
mandate. See Kolkka Tables & Finnish-American Saunas,7 323
NLRB [958] (1997), enfd. 170 F.3d 937, 940–941 (9th Cir.
1999) (holding that the participation of undocumented aliens in
a union representation election was valid, even if their em-
ployee status may have been subject to challenge under IRCA,
because the individuals in question were employed in the bar-
gaining unit during the eligibility period and on the date of the
election); see also Country Window Cleaning Co., 328 NLRB
190 (1999) (holding that undocumented aliens are employees
under Sec. 2(3) of the Act and are therefore entitled to protec-
tions and remedies of the Act); A.P.R.A. Fuel Oil Buyers
Group, 320 NLRB 408, 411–415 (1995), enfd. 134 F.3d 50, 56
(2d Cir. 1997) (citing IRCA Congressional Judiciary report that
IRCA was “not intended to limit in any way the scope of the
term ‘employee’” under the Act). Even the one case cited by
the Employer in its brief, Del Rey Tortilleria, Inc. v. NLRB, 976
F.2d 1115 (7th Cir. 1992), confirms Sure-Tan’s dictate that
undocumented aliens are “employees” within the meaning of
the National Labor Relations Act (the Act). The Board has thus
clearly and uniformly applied the principle that individuals who
are employed during the eligibility period before and on the
date of a representation election are “employees” under the Act
and are, therefore, eligible to vote in the election. See Sure-
Tan, supra; Kolkka, supra; County Window Cleaning, supra;
and APRA Fuel, supra.
The Employer did not provide any evidence to prove that
any of its employees are undocumented aliens. Even if it had
provided such evidence, the Casehandling Manual, as well as
Supreme Court and Board law, foreclose the objection. See
Sure-Tan, supra; Kolkka, supra.
Accordingly, I recommend overruling Employer’s Objection
1.
Objection 2: Region’s Refusal to use Bilingual Ballots
The Employer’s second objection reads as follows:

The Regional Director of the National Labor Relations Board
refused to use Spanish ballots for Superior Truss & Panel em-
ployees who were literate only and spoke only in Spanish.

The Employer requested the use of bilingual (Eng-
lish/Spanish) ballots on January 31, 2001. Region 13 denied
the Employer’s request, noting that Spanish notices with sam-
ple Spanish ballots would be sufficient to apprise employees in
the voting unit how to make their voting intentions known on
the English ballot. The Employer appealed this decision to the
Board on February 9, 2001. The Board denied the Employer’s
appeal on March 9, 2001.
Among the voting unit of 28 employees, the evidence shows
that several speak Spanish as their primary language. In fact,
7 The facts of Kolkka parallel those in the instant case. In Kolkka,
the union prevailed in a representation election, after which the em-
ployer filed objections. The employer argued that certain employees
were ineligible to vote because they were undocumented aliens. The
court upheld the Board’s motion for summary judgment and overruled
the employer’s objection based on Sure-Tan’s mandate that undocu-
mented alien workers are employees within the meaning of the Act and
thus eligible to vote in a representation election. See Ninth Circuit
discussion, supra at 170 F.3d at 940–941.
SUPERIOR TRUSS & PANEL, INC. 919
the evidence shows that between 10 and 15 of the employees
who voted in the election do not understand, speak, read, or
write English.
Welty testified that, at least 1 week before the election, he
received from Region 13 Notices of Election in both English
and Spanish. Welty immediately posted these notices in three
break areas where they would most easily be seen by the unit
employees. Employees Manuel Hernandez Espinoza (Es-
pinoza), Arturo Sierra (Sierra), and Ramon Gonzalez (Gon-
zalez) testified that they saw and read these notices in Spanish
with the sample Spanish ballot posted in the break areas prior to
the election.8
Welty further testified that he held several mandatory meet-
ings for the employees prior to the election. Welty testified that
he displayed the sample English and Spanish ballots at these
meetings, and that he explained how the employees should
mark the ballot if they did not want to vote for the Union.
Welty testified that he had bilingual receptionist (and nonunit
member) Martha Ayala translate these instructions to the em-
ployees in Spanish after he announced them in English.
In its brief, the Employer argues that the employees who do
not understand English were confused at the election. This
position is wholly unsupported by the record evidence. Em-
ployee Diaz, who was called as an employer witness, testified
that he does not speak, read, or write English. However, Diaz
testified credibly that he understood the “YES” and “NO” on
the ballot and he explained that the purpose of the ballot was to
mark down whether he wanted the Union or not. Diaz under-
stood complicated questions about the ballot and the election
posed to him by Employer’s counsel:

Q. If you don’t want the Union do you mark yes?
A. No. . . . If I don’t want the Union I put down no. If
I want the Union I mark yes.
Q. Without telling me how you voted, tell me are you
supposed to put a mark like a check in the box?
A. Well, I put down an X.
Q. What did you do after you put down an X, without
telling me how you voted?
A. I folded the paper and I deposited it in the box.
Q. How would you spoil the ballot?
A. Well, perhaps by making some other sort of marks.
Q. If you spoiled the ballot what would you do?
A. Well, I would ask for another one.

Diaz testified that he knew exactly what to do with his ballot
because he had seen a sample ballot in the employee’s lunch-
room prior to the election and because he had attended the
meetings held by Welty where the ballot was reviewed in Eng-
lish and Spanish.
Similarly, employees Espinoza, Sierra,9 and Gonzalez testi-
fied that they were not confused by the English ballot despite
their limited understanding of English. They each testified that

8 Employee Augustin Diaz (Diaz) testified that he saw notices posted
only in English prior to the election.
9 Contrary to the assertions of Employer’s counsel, I find that em-
ployee Sierra did know the name of the Union attempting to represent
him. When asked by the hearing officer if he knew the kind of union
trying to represent the employees, Sierra responded, “[C]arpenters.”
they would mark “YES” to vote for the Union and mark “NO”
to vote against the Union.10 Espinoza, Sierra, and Gonzalez
each testified that he had been well informed about the English
ballot and the voting procedure from reading the notices posted
in the break areas and from attending the mandatory meetings
held by the Employer where the voting procedure and the Eng-
lish ballot were explained in Spanish.
The Board has made it clear that it has no policy requiring
the use of ballots in multiple languages. Northwest Products,
Inc., 226 NLRB 653 (1976); Precise Castings, 294 NLRB
1164 (1989), enfd. 915 F.2d 1160 (7th Cir. 1990), cert. denied
499 U.S. 959 (1991). The Board has even changed its Case-
handling Manual to reflect this policy. Section 11314 of the
1984 Casehandling Manual read, “If a foreign language notice
is used, that language must also be used on the ballot” (empha-
sis added). The 1989 version of Section 11314 read, “If a for-
eign language notice is used, that language may also be used on
the ballot” (emphasis added). The current version of the perti-
nent section, now Section 11315.2(c), states that translated
notices of election may be provided, while English-only ballots
are provided to the voters at the election.
Pursuant to Precise Castings, supra, and the Casehandling
Manual, there is no uniform policy mandating that every Re-
gion of the NLRB use foreign language ballots. To the con-
trary, the Board and the court held in Precise Castings, noting
that Region 13 never uses bilingual ballots, that nothing in the
Act prevents the Board from giving the Regions discretion in
matters of this kind. Precise Castings, supra at 1164. There-
fore, the Employer’s argument addressing other Regions use of
foreign language ballots is simply irrelevant. Region 13 is
within its discretion to use English-only ballots, and this deci-
sion has been upheld by the Board and the courts. Precise
Castings, supra.
Moreover, as in Precise Castings, the record contains no
evidence of actual confusion. Contrary to the Employer’s as-
sertions and as discussed above, employees Diaz, Espinoza,
Sierra, and Gonzalez testified credibly that they understood and
were not confused by the English ballot. The failure to provide
a bilingual ballot is not objectionable and did not interfere with
the right of voters who are literate only or speak only in Span-
ish to cast an informed ballot.
Accordingly, I recommend overruling Employer’s Objection
2.
Objection 3: Union Interference with the Election
The Employer’s third objection reads as follows:

The Union interfered with the election by providing employ-
ees an attorney who promised to represent the employees in a
lawsuit against the employer, and took statements from em-
ployees/voters during a Union sponsored campaign meeting.

It is undisputed that an attorney for the Union attended a
meeting with some employees of the Employer at the union hall
approximately 1–2 weeks prior to the election. Employee
Robert Harrison testified to the events that transpired at this
10 Each of these employees independently testified that he would
mark “NO” if he did not want the Union and “YES” if he did want the
Union despite difficult questioning by Employer’s counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 920
meeting.11 According to Harrison, several of the Hispanic em-
ployees attended the meeting because they were upset with one
of the supervisors, Richard Glowaki. Harrison testified that
Glowaki had been “riding” the Hispanic employees at work and
had made racial slurs against them. Harrison testified that the
Hispanic employees commented on Glowaki’s treatment of
them to the union officials and the union attorney at this meet-
ing. After listening to the Hispanic employees’ complaints,
Harrison testified that the union attorney told them that if “we
had problems like that or discriminatory remarks from these
individual supervisors or if they changed anything at the com-
pany that we wasn’t already doing, to write this stuff down on a
piece of paper, date it, time it, and they, you know, they’d file
suit afterwards, you know, after the election.”
No evidence was presented during the hearing that any
statements were taken from any employees during the meeting
(or at any other time). Although the Employer states in its brief
that the union attorney discussed the possibility of filing a dis-
crimination lawsuit on behalf of the employees, Harrison testi-
fied that the union attorney did not specify what type of suit he
intended to file. Furthermore, in his affidavit, Harrison did not
refer to a lawsuit of any kind. Rather, Harrison’s affidavit
states that the Union would file “charges” of discrimination
along with other charges after the election.
In addition, Harrison testified that the union attorney never
stated he would only file charges against the Employer if the
Union won the election, or that only the employees who voted
for the Union would get the services of the Union or the union
attorney. Harrison also testified that there was never any dis-
cussion with the union attorney or union officials about an ex-
change of money regarding the election.
Harrison recorded his recollection of this meeting12 on
March 21, 2001, 1-1/2–2 months after the meeting took place,
at the urging of Bryce Welty. I note that right before Harrison
recorded this sworn affidavit, Bryce Welty promoted him out of
the bargaining unit to a management position with a significant
raise and the ability to hire and fire employees. Given these
circumstances, I find his credibility as a witness to be compro-
mised. However, even if Harrison’s version is credited, I do
not find his account of the union attorney’s interaction with the
employees prior to the election objectionable.
The Board recognizes the historical role unions play in as-
sisting employees in improving their terms and conditions of
employment. Novotel New York, 321 NLRB 624, 630–635
(1996).

Unions engage in this broad range of activity on behalf of
both employees they represent, as well as employees they are
seeking to organize. Unions engage in this conduct, more-
over, to demonstrate to employees their suitability to serve, or
to continue to serve, as the employees’ collective bargaining
representative.

Id. at 630.

11 Harrison also provided a sworn affidavit regarding his recollection
of this meeting. This affidavit was entered into evidence by Em-
ployer’s counsel.
12 See fn. 10, supra.
The Board in Novotel and other similar decisions distin-
guished a union’s permissible grant of benefit during the criti-
cal period prior to the representation election and a union’s
objectionable grant of benefits. Giving cash payments to em-
ployees during the critical period would be clearly objection-
able as it would be “totally unrelated to any effort to improve
employee conditions of employment and constitutes nothing
less than an attempt to corrupt the election process.” Id. at 635.
Offering to waive employees’ initiation fees to employees who
sign union recognition slips as a show of preelection support
constitutes an impermissible inducement. Id.; NLRB v. Savair
Mfg. Co., 414 U.S. 270 (1973). Other objectionable conduct
was found when a union conferred on potential voters a finan-
cial benefit to which they would otherwise not be entitled, such
as free medical screenings or preelection life insurance cover-
age. Novotel, supra at 635.
In Novotel, the union offered legal services to unit employ-
ees during the critical period prior to a representation election
to investigate, prepare and file a lawsuit asserting their wage
claims under the Fair Labor Standards Act. The Board found
that the employer did not present any evidence in support of its
claim that the union conditioned the receipt of legal representa-
tion on a favorable result in the election, and concluded that the
essential role of union conduct to assist workers in the exercise
of their Section 7 rights to better their working conditions was
fundamental to the statutory scheme of the Act. Id.
In the instant case, as in Novotel, the Employer did not pre-
sent any evidence to support its claim that the Union condi-
tioned the receipt of legal representation on a favorable result in
the election. In fact, there was no established evidence that
there was to be any legal representation of any kind. In
Novotel, there was an actual lawsuit filed prior to the election.
In the instant case, no evidence of a lawsuit was entered into
the record. The only evidence showed that a union attorney
told some of the Employer’s employees who had complained
about their treatment by a supervisor to record any such future
treatment. Harrison testified that the union attorney did not
condition his advice or services on the outcome of the election
or limit his services to those who voted for the Union. None of
the employees testified that they felt compelled to vote for the
Union because the Union was offering them legal services. I
find that the Union was at most assisting these employees in the
exercise of their Section 7 rights, which is fundamental to the
statutory scheme of the Act. Novotel, supra.
Nor do I find the union attorney’s conduct objectionable un-
der Nestle Ice Cream Co., 46 F.3d 578 (6th Cir. 1995), which
was relied on by the Employer in its brief. In Nestle, the court
fashioned a two-part test for determining whether a grant of
benefits 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 influ-
ence that person’s vote;” and (2) “Also, the potential to influ-
ence must be to purchase or unduly influence votes, that is,
influence votes without relation to the merits of the election.”
Id. at 583. Under the Nestle test, I am unable to find in this
case that the provision of legal services or the potential provi-
sion of legal services (whether for the filing of charges and/or a
lawsuit) is sufficiently valuable to have the potential to influ-
SUPERIOR TRUSS & PANEL, INC. 921
ence voter choice because the Employer did not present any
evidence on this issue. The Employer did not ask any of its
employee witnesses who testified at the hearing questions con-
cerning the impact this alleged “suit” or “charges” would have
on their votes. There is simply no evidence in the record to
support the Employer’s claim that the union’s attorney made
improper promises prior to the election such that the election
should be overturned. Therefore, even under Nestle,13 I do not
find that the Union’s actions constitute objectionable grounds
to set aside the election.
The Board has never held that a union may not provide legal
services during an organizing campaign, even during the criti-
cal period before the election, provided that it is striving to
improve employees’ working conditions. The Board has long

13 The Employer relies substantively on court cases, rather than
Board law, in its third objection. Therefore, I included an analysis of
the Nestle court case herein.
recognized this role for unions. The Union in this case was
playing its role in protecting and advancing the rights of the
Employer’s employees. See Novotel, supra at 635.
Accordingly, I recommend overruling Employer’s Objection
3.
Conclusions and Recommendations to the Board
Based on my findings and conclusions set forth herein, I rec-
ommend that the Employer’s objections be overruled and a
Certification of Representative issue.14
14 As provided in Sec. 102.69 of the Board’s Rules and Regulations,
exceptions to this report may be filed with the Board in Washington,
D.C. within 14 days from the date of the issuance of this report. Imme-
diately on filing such exceptions, the party filing same shall serve a
copy thereof upon each of the other parties and shall file a copy with
the Regional Director for Region 13. If no exceptions are filed, the
Board may adopt the recommendations of the hearing officer.