Galaxy Condominium Association, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 2, 2011

22-RC-013150 (N.L.R.B. Feb. 2, 2011)

JD(NY)–04–11
Guttenberg, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
GALAXY CONDOMINIUM ASSOCIATION, INC.
Employer
and Case 22-RC-13150
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL UNION 966
Petitioner
and
INTERNATIONAL UNION OF JOURNEYMEN AND
ALLIED TRADES, LOCAL 124
Intervenor
Michael L. Kingman, Esq., (Diktas Schandler Gillen)
Cliffside Park, NJ for the Employer.
John R. Howard, Esq., (Kennedy, Jennnik & Murray PC)
New York, NY for the Petitioner.
Steven H. Kern, Esq., (Barnes Iaccarino & Shepherd LLP)
Elmsford, NY for the Intervenor.
RECOMMENDED DECISION ON OBJECTIONS
Statement of the Case
Steven Fish, Administrative Law Judge: Pursuant to a Petition filed by International
Brotherhood of Teamsters, Local Union 966, herein called Petitioner or Local 966, on August
16, 2010,1 the parties2 entered into a Stipulated Election Agreement on September 2 providing
for an election to be conducted on September 24 among all full-time and regular part-time
service employees, maintenance employees, garage attendants, master mechanics,
concierges, doormen, porters, handymen, security guards and hall persons, employed by the
Employer at its 7000 Boulevard East, Guttenberg, New Jersey facility.
The election was conducted and thereafter a Tally of Ballots was duly served upon the
parties, which showed the following:

1 All dates subsequently referred are in 2010 unless otherwise indicated.
2 The parties included International Union of Journeymen and Allied Trades, Local 124,
herein called the Intervenor, who was the incumbent representative of the employees employed
by Galaxy Condominium Association, Inc. (the Employer).
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Approximate number of eligible voters 75
Void ballots 0
Votes cast for International Brotherhood of
Teamsters, Local Union 966 (Petitioner) 23
Votes cast for International Union of Journeymen
and Allied Trades, Local 124 (Intervenor) 41
Votes cast against participating labor organization 0
Valid votes counted 64
Challenged ballots 1
Valid votes counted plus challenged ballots 65
Challenges are not sufficient in number to affect the results
of the election.
A majority of the valid votes counted plus challenged
ballots has been cast for International Union of Journeymen and
Allied Trades, Local 124 (Intervenor).
On October 1, the Petitioner timely filed objections to conduct affecting the results of the
election.
On October 18, the Director issued a Report on Objections and Notice of Hearing, in
which he concluded that Petitioner’s Objections 1-7 and 9 raised substantial and material
issues, which can best be resolved on the basis of record testimony at a hearing.3
Accordingly, a hearing was held before me on November 8 in Newark, New Jersey.
Briefs have been filed by the Petitioner and the Intervenor and have been carefully considered.
Based upon the entire record, including my observation of the demeanor of the witnesses, I
issue the following:
I. The Objections
The Objections filed by the Petitioner are set forth below:
OBJECTIONS TO ELECTION FILED
ON BEHALF OF I.B.T. LOCAL UNION NO. 966
Petitioner, I.B.T. Local Union No. 966 (“Petitioner” or “Local
966”), submits the following Objections to the Election that took
place on September 24, 2010:
1. The employer, Galaxy Towers Condominium
Association (the “Employer” or “Galaxy Towers”) destroyed the
laboratory conditions necessary for a fair election and engaged in
unlawful conduct by providing unlawful assistance to Labor
Organization IUJAT, Local 124 (“Local 124”).
2. The Employer and Local 124 destroyed the laboratory
conditions necessary for a fair election by threatening members

3 Petitioner withdrew Objection 8 during the course of the processing of the objections.
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throughout the bargaining unit that they would lose their jobs if
Local 124 lost the election.
3. The Employer and Local 124 destroyed the laboratory
conditions necessary for a fair election by threatening members
throughout the bargaining unit that they would lose their jobs if
Local 966 won the election.
4. The Employer destroyed the laboratory conditions
necessary for a fair election by allowing agents of Local 124 to
enter the property and speak with workers, and prohibiting agents
of Local 966 from entering the property to speak with workers.
5. The Employer destroyed the laboratory conditions
necessary for a fair election by condoning, adopting and/or
ratifying threats made by the agents [of] Local 124 to members of
the bargaining unit that if the members did not vote for Local 124
and/or against Local 966, that they would lose their jobs.
6. The Employer and Local 124 destroyed the laboratory
conditions necessary for a fair election by making promises of
employee benefits and payments of cash to members of the
bargaining unit only if Local 124 won the election.
7. The Employer destroyed the laboratory conditions
necessary for a fair election by condoning, adopting and/or
ratifying promises of employee benefits and payments of cash
made by Local 124 to members of the bargaining unit if Local 124
won the election.
8. By these and other acts that will be revealed in the
investigation into these objections, the Employer and Local 124
engaged in conduct during the critical period which precluded the
holding of a fair election in this bargaining unit.
9. The NLRB Agent who was to serve as the translator for
Spanish-speaking bargaining unit members was one hour late to
the polling place depriving Spanish-speaking members who
wanted to vote between the hours of 5:30 a.m. and 6:30 a.m. of a
fair and informed vote.
Date: October 1, 2010
New York, New York
II. Objections 1-5 and 7
The Petitioner introduced no evidence pertaining to any of these objections. Therefore, I
recommend that Objections 1-5 and 7 be overruled.
III. Objection 6
This objection alleges that the Employer and Local 124 destroyed laboratory conditions
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necessary for a fair election by making promises of employee benefits and payments of cash to
members of the bargaining unit only if Local 124 won the election.
To the extent that this objection alleges that the Employer made promises of benefits
and payments of cash to unit members, Petitioner presented no evidence that the Employer
engaged in any such conduct. Indeed, Petitioner does not so contend in its brief. Accordingly,
the portion of this objection that so alleges is overruled.
The objection also alleges that Local 124 made promises of cash payments to
employees in order to influence their vote. It adduced no evidence of such conduct. Thus, this
portion of the objection must also be overruled.
Petitioner did adduce evidence concerning Local 124’s conduct with respect to the
promise and grant of a dental benefit, which is encompassed by this objection, and which I shall
now consider.
In this regard, the evidence discloses that Local 124 and the Employer were parties to a
collective bargaining agreement that ran from June 1, 2006 to May 31, 2009. The agreement
provides that the Employer shall contribute to the “Local 124 Welfare Plan (which includes the
Local 124 Dental Plan and the Local 124 Prescription Plan) the following monthly contributions
for each employee.”
The agreement then sets forth three separate amounts to be paid by the Employer to the
Local 124 Welfare Plan (herein called the Fund) of $550 for single, $625 for employee + one
dependent and $700 for a family.
The record also establishes that after this contract expired, Local 124 and the Employer
have been bargaining for a new contract, but no agreement had been reached. It is also
undisputed that despite the expiration of the contract the Employer has continued to make
payments to the Fund for medical coverage as provided for in the expired agreement.
Petitioner called Local 966’s President James Anderson to testify concerning the issue
of dental coverage and the election. According to Anderson, in his meetings with employees of
the Employer, they had complained to him about the fact that a new contract had not been
obtained by Local 124, that they had not received any raises and that their dental benefit had
been eliminated. Anderson also testified that the biggest issue during the campaign was the
discontinuance of the dental coverage.
A few days before the election, Local 966 was conducting a meeting at a restaurant near
the Employer’s facility. At that meeting, employees informed Anderson that they had received a
letter dated September 14, informing them that their dental coverage would be reinstated
effective October 1. The letter was accompanied by a “packet” from the carrier detailing the
benefits accompanied by an enrollment card. The referred to above letter was from the billing
representative of Healthplex, the carrier, to Michael Pagan, Administrator of the Fund. It reads
as follows:
September 14, 2010
Dear Benefits Administrator:
Dear Mr. Pagan,
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Please be advised that Dentcare Delivery Systems is in
receipt of your request to reinstate seventy-three members
effective October 1, 2010. Our October billing has been completed
and as a result premiums for these members will appear on your
November invoice. These members will be billed for both October
and November. If you [sic] require further assistance, you may
contact me at 516-542-2670.
Sincerely,
Jeanne Cardlin – Sr. Billing Representative
Local 124 called Pagan as its witness. He testified that he is the Fund Administrator as
well as Vice-President of Local 124. He testified that once the Employer pays the sums called
for in the contract to the Fund, the Fund decides how much of these amounts are used to
provide the various benefits to employees, such as medical coverage and dental coverage. The
dental coverage is provided by a separate carrier from the other benefits.
Pagan asserted that towards the end of 2009, the Union was having difficulty in
obtaining additional payments from the Employer during negotiations. Further, the Fund was
facing increases in premiums from its carriers, including a 10% increase from its dental carrier.
Therefore, at a meeting between representatives of Local 124 and the Fund, it was proposed
that a 6-month “freeze”4 in dental benefits be instituted in order for Pagan to look around for a
different plan that might be substituted.
According to Pagan, this decision was made jointly by the Fund and Local 124 to be
effective January 1 and was communicated to and approved by unit employees at a meeting in
January 2010. While Pagan was not present at this alleged meeting, he claims that he was told
by Andres Ruiz, the Local 124 shop steward, that such a meeting was held and that the
employees agreed to a 6-month “freeze” or “suspension” of the benefit.5 Pagan also testified
that Local 124 sent a letter to employees announcing the 6-month suspension, but no such
letter was produced. Indeed, Local 124’s counsel stated that he did not have such a document.
Pagan further testified that his attempt to find a cheaper alternative plan was
unsuccessful as the only cheaper plans that he found had sharply reduced benefits, which were
not satisfactory. Additionally, Local 124’s efforts to obtain an agreement were also not
successful. Thus, when the six months were up in late June, there had been no progress on
either front.
The reason that the benefit was not restored as allegedly promised at that time,
according to Pagan, was that James Bernadone, one of the two trustees of the Fund was in the
hospital.6 Bernadone was and is also the Secretary Treasurer of Local 124 and was Local 124’s
chief negotiator during its bargaining with the Employer. Pagan was uncertain about precisely
when Bernadone was in the hospital and for what reason. However, Pagan testified that

4 While Pagan consistently referred to the term “freeze” in his testimony, it is clear that what
he really meant was to suspend the dental coverage for 6 months.
5 Ruiz was called as a witness by Local 124 to testify about other objections, but was not
asked about this issue. Thus, he did not corroborate Pagan’s testimony that employees had
approved the temporary suspension of the benefit.
6 The other trustee was Gene DeVito, an Employer Professional Representative.
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Bernadone, sometime in late August, was in the hospital for approximately a month and left the
hospital in August. Pagan adds that sometime in late August, after Bernadone got out of the
hospital and after the petition was filed, the Fund met with representatives of the Union. At this
meeting, Pagan contends that he recommended that the dental benefit that had been
suspended be reinstated as the Union had promised the employees. Bernadone and DeVito
both agreed that the dental benefit be reinstated. Pagan claims that he then telephoned the
carrier and was told by the representative that it was too late to reinstate the benefit by
September 1 since it was necessary to obtain enrollment information. Thus, it was decided to
reinstate the benefit as of October 1.
The carrier subsequently sent the letter dated September 14 to Pagan containing the
reinstatement, which as related above, was distributed to employees shortly thereafter along
with enrollment forms and booklets.
Pagan also testified that shortly after September 14, he, along with Kevin Walker and
Bob Suhr, business agents, meet with the employees of the Employer. Pagan testified that a
number of employees at the meeting were confused by the letter, which seems to suggest that
the dental benefit would only be reinstated for two months. Pagan assured them that this was
not the case and that the benefit was being restored permanently. At this meeting, the pending
election was discussed and the business agents for Local 124 were giving employees reasons
why they felt that the employees should support Local 124 in the election.7
Pagan conceded that the dental benefit was reinstated even though Local 124 had not
obtained any agreement for increased payments by the Employer and the Fund had not found
an acceptable alternative plan, which were the reasons why the dental coverage was
suspended in January. Pagan testified that the Fund absorbed the 10% increase in premiums
from the carrier from its general funds. Pagan also admitted that the Union had the discretion to
decide when the benefits were to be reinstated.
Pagan also conceded that neither the Union nor the Fund notified the Employer when it
suspended the benefit in January or when the benefit was reinstated as of October 1.
Local 124 contends initially that it was the Fund’s decision to reinstate the dental benefit
to the Employer’s employees and that the actions of the Fund are not automatically attributed to
the Union. Commercial Property Services, 304 NLRB 134 (1991).
Intervenor is correct that the Fund is a separate entity from the Union and that it will not
be presumed to be acting on behalf of a Union, unless contrary evidence shows otherwise.
Commercial Property, supra at 134-135; Garland-Sherman Masonry, 305 NLRB 511 fn. 1, 514-
515. Thus, the trustees of a fund are acting in a fiduciary responsibility to manage the funds for
the benefit of the employee beneficiaries of the funds. Garland-Sherman, supra at 513-515, fn.
1 at 511.
However, the Board has indentified at least three situations where the fund is deemed to
be acting as an agent of a union. They are: (1) where provisions of a collective bargaining
agreement remove the discretion to administer the funds solely for the benefit of the employees;
(2) where the trustees’ actions were in fact directed by union officials; and (3) where the
trustees’ acts were undertaken in their capacities as union officials rather than as trustees.
Service Employees, Local 1-J (Shor Co.), 273 NLRB 929, 931 (1984); Garland-Sherman, supra

7 As noted, the election was held on September 24.
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at 513-514.
I find here that two of these exceptions apply. I conclude that the actions of the Fund
were in fact directed by the union officials and the trustees’ actions were undertaken in their
capacities as union officials rather than as trustees. I note initially that Pagan’s own testimony
admits that Local 124 had the discretion to reinstate the dental benefit and that it did so due to
its promise to employees to do so after six months. Further, when the decision was made to
reinstate the benefit, Bernadone, the trustee of the Fund and Secretary Treasurer of Local 124,
was not acting in furtherance of the Fund objectives, but primarily as an officer of the Union.
Significantly, the ostensible reason that the Fund suspended the benefits in January was
due to the inability of Local 124 to obtain additional payments from the Employer in negotiations
and in order to shop around for a cheaper alternative. Yet, the decision was made to reinstate
the benefit as of October 1, despite the fact that neither of the factors motivating the decision
had been alleviated. Thus, no additional agreements for extra payments from the Employer had
been reached, and the Fund had been unable to obtain equivalent or cheaper coverage from
another carrier. Therefore, when Bernadone voted to reinstate the benefits, he was not acting in
is fiduciary role as a Fund trustee, but as a representative of the Union. Indeed, the purpose of
suspending the benefit initially was based on the desire of the Fund to preserve Fund assets,
and this was not accomplished or effectuated by the reinstatement of the benefits. Therefore, I
find that the Fund was acting as the agent for Local 124 when it reinstated the benefits for the
Employer’s employees effective October 1. Shor Co., supra, 273 NLRB at 931 (action of trustee
and union official found to be a pretextual retaliation against an employee for filing a
decertification petition, not a good faith effort to preserve fund assets); Jacobs Transfer, 227
NLRB 1231, 1232-1233 (1977) (trustees found to be agents of union); NLRB v. Construction &
General Labors’ Union, 577 F.2d 16, 20-21 (8th Cir. 1978) (trustee agent of the union since it
was acting to promote union goals and not solely in the interests if employee participants and
beneficiaries). See also L & M Carpet Contractors, 218 NLRB 802 fn. 1 (1975) (trust fund agent
for union).
In making my finding that the Fund was an agent for the Union, I also rely on the
absence of any testimony from Bernadone, the key player with respect to this issue. He is the
trustee/union official, who voted to reinstate the benefit. His motivation for doing so and whether
he was acting in support of union interests as opposed to his role as a trustee to preserve the
viability of the Fund is crucial. I note in this connection that no explanation was provided for
Local 124’s failure to call Bernadone as a witness, and indeed, he was in the hearing room
during the trial. In these circumstances, it is appropriate to draw an adverse inference from his
failure to testify, and to conclude that his testimony would not support Local 124’s position on
this issue. International Automated Machines, 285 NLRB 1122, 1123 (1987).
Accordingly, based on the foregoing analysis and authorities, I conclude that the Fund
was acting as an agent for Local 124 when it reinstated the dental benefit, and that Local 124 is
responsible for that action.
Turning to the issue of whether Local 124’s announcement of its reinstatement of the
dental benefit constitutes objectionable conduct, it is well-settled that “the Board will infer that an
announcement or a grant of benefits during the critical period is coercive, but the employer may
rebut the inference by establishing an explanation other than the pending election for the timing
of the announcement or the bestowal of the benefit.” STAR Inc., 337 NLRB 962 (2002). See
also American Sunroof Corp., 248 NLRB 748 (1980).
It is also clear that these principles are also applicable to benefits announced or granted
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by a union. Mailing Services, Inc., 293 NLRB 565 (1989).
The factors considered by the Board in assessing these issues are set forth in B & D
Plastics, 302 NLRB 245 (1991). They include: (1) size of the benefit conferred in relation to the
stated purpose for granting it; (2) the number of employees receiving it; (3) how employees
reasonably would view the purpose of the benefit; and (4) the timing of the benefit.
An examination of the factors set forth in B & D Plastics reveal that all of them support
the finding, which I make, that the announcement and grant of this benefit “would tend
unlawfully to influence the outcome of the election.” B & D Plastics, supra at 245. Thus, the
dental benefit was substantial, was granted to all unit employees, B & D Plastics, supra, STAR
Inc., supra at 963, and all of them reasonably would have been influenced in their voting. STAR
Inc., supra. In this regard, I note that the loss of the dental benefit was a major campaign issue
during the pre-election period, and many of the Employer’s employees stated to Petitioner’s
representatives that they were upset about the loss of the benefit and that this was one of the
reasons that they supported Petitioner as opposed to the incumbent Intervenor, who had in fact
been responsible for the elimination of the benefit.
Finally, and most importantly, the timing of the announcement and the grant of the
benefit strongly supports the finding of objectionable conduct. STAR Inc., supra (benefit
announced and distributed two weeks before the election); B & D Plastics, supra (benefit
granted two days before election). Here, the implementation of the dental benefit was
announced on September 14, ten days before the election, effective on October 1, a week after
the election.
These factors represent a strong and compelling inference that the announcement and
grant of the benefit was objectionable. Local 124 therefore had a heavy burden of establishing
that the announcement and grant of the benefit was governed by factors other than the
pendency of the election. American Sunroof, supra. I conclude that Local 124 has far fallen
short of meeting its burden in this regard. Intervenor argues that it has met its burden by the
testimony of Pagan, which in its view established that the reinstatement of the dental plan was
effectuated pursuant to a pre-existing promise made to and approved by the employees of the
Employer that the dental benefit would be suspended for six months. Pagan further testified that
the reason that the benefit was not reinstated after six months as promised was because
Bernadone, one of the two co-trustees, was unavailable to approve the reinstatement due to a
hospitalization of approximately one month. Pagan further asserted that as soon as Bernadone
left the hospital, the Fund representatives met with representatives of Local 124, and it was
decided to reinstate the benefit. Further, Pagan contends that there was insufficient time to
reinstate the benefit by September 1 due to the necessity of enrolling the employees and
furnishing them with ID cards. Thus, it was decided that reinstatement would be effective as of
October 1.
I found Pagan’s testimony to be unconvincing and unpersuasive and far from sufficient
to meet Intervenor’s burden of proof. Notably, Pagan testified that when the dental benefit was
suspended in January, it was only a six-month suspension and that employees were both
notified about it in writing and approved the suspension at a meeting. However, Pagan was not
present at any such meeting and the individual, who allegedly informed Pagan about the alleged
approval by employees, shop steward Ruiz, did not corroborate Pagan’s testimony in this
regard. Significantly, Ruiz did testify with respect to another objection, but was not asked about
Pagan’s testimony concerning the alleged six-month suspension and the alleged approval of
same by unit employees. In these circumstances, an adverse inference is appropriate, which I
draw, that Ruiz’s testimony would not have corroborated Pagan concerning these issues.
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International Automated Machines, supra. Furthermore, Pagan testified that Local 124 sent a
letter to employees announcing a six-month suspension of the benefit. However, such a
document was not produced, and Local 124’s counsel conceded that he did not have such a
document. This further detracts from the reliability of Pagan’s testimony.
Even more significant is the absence of any testimony from Bernadone, the
secretary/treasurer of Local 124 and a co-trustee. I note that Bernadone was present in the
hearing room, and Local 124 inexplicably failed to call him as a witness to corroborate Pagan’s
testimony concerning the alleged six-month suspension of the benefit and that the decision not
to reinstate the benefit until October was due to Bernadone’s hospitalization.
Thus, Local 124 adduced no testimony as to precisely when Bernadone went into and
left the hospital, what was the nature of his illness or even why he could not approve the
reinstatement even while in the hospital. Indeed, since Pagan asserted that Local 124 and the
Fund had already decided to suspend the benefit for only six months, it is reasonable to argue
that a new vote to reinstate the benefit was not even necessary. The failure of Bernadone to
testify about any of these matters once again leads to an adverse inference that his testimony
with regard to these issues would not be favorable to Local 124 and would not corroborate
Pagan. International Automated Machines, supra.
Moreover, even apart from an adverse inference, Bernadone was the decision maker
when the Fund and the Union decided to reinstate the benefit and announce it to employees two
weeks before the election. Pagan, Local 124’s sole witness with respect to the decision, was
unqualified to testify about the reasons for the timing of the announcement and reinstatement of
the benefits. Therefore, the absence of Bernadone’s testimony demonstrates that Local 124 has
failed to carry its burden of showing that the announcement and the granting of the benefit were
for reasons “other than the pending election.” Mercy Hospital, 338 NLRB 545, 546 (2002)
(absence of testimony from decision maker as to timing of announcement of benefit crucial in
finding that employer had not met its burden of proof).
Therefore, I conclude that Local 124’s announcement and grant of a dental benefit to
unit employees within days of the election constituted objectionable conduct that impaired the
employees’ exercise of free choice. Mailing Services, supra, 293 NLRB at 565-566 (union’s
announcement and subsequent provision of free medical screening to employees); Wagner
Electric Corp., 167 NLRB 532, 533 (1967) (union’s gift of life insurance coverage to prospective
voters); Alyeska Pipeline Service Co., 261 NLRB 125, 127 (1982) (union’ promise to provide job
referrals to voters). See also Comcast Cablevision v. NLRB, 232 F.3d 490, 495-498 (6th Cir.
2000) citing Owens-Illinois Inc., 271 NLRB 1235, 1236 (1984) (union’s distribution of union
jackets valued at $16.00 each to employees held objectionable).
I have found that Intervenor had fallen far short of overcoming the inference of illegality
under B & D Plastics, and that it has not shown that the decision to announce and grant the
dental benefit to employees was due to factors other than the pending election. Accordingly,
based upon the foregoing analysis and authorities, I conclude that Local 124 engaged in
objectionable conduct and that Petitioner’s Objection 6 should be sustained, I so recommend.
IV. Objection 9
Petitioner presented its president, James Anderson, as its sole witness concerning this
objection that the lateness of a Spanish interpreter required that the election be set aside.
Anderson testified that during the Petitioner’s organizing campaign he met with and
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spoke to approximately 50-60 of the Employer’s employees. Anderson testified that he had a
Spanish interpreter with him during this meeting, in which he estimated that 30% to 40% of the
employees did not speak English. Accordingly, when he discussed with the Board agent the
details of the election, Anderson requested that a Spanish interpreter be provided. The Board
agent informed Anderson that he would “put in” Anderson’s request and that he expected that
an interpreter would be present.
The election was held on September 24. The polls opened at 5:30 a.m. Anderson
arrived at the Employer’s premises at about 5:00 a.m. Representatives from Local 124, as well
as observers for all parties, were also present. However, the Spanish interpreter was not there.
Anderson asked the Board agent, “Where’s the interpreter?” He responded that the interpreter
was “supposed to be here.” At 5:30 a.m., the polls were opened without the presence of the
interpreter.
Anderson left the polling place and sat in his car in the parking lot from where he could
see who entered the facility, where the election was being conducted. Anderson further testified
that about 45 minutes to an hour after the polls opened, he noticed someone walking around the
garage area looking lost. Anderson approached that individual and asked if he was the
translator for the Board. He replied “yes” and told Anderson that he had a car accident on the
way over to the polls and had gotten a ticket. Anderson directed the interpreter to the polling
area.
During this 45-60 minute period prior to the appearance of the interpreter, he asserts
that he observed 8-10 employees enter the facility to vote. Anderson did not know how many of
these employees were Spanish-speaking or in need of an interpreter. After the polls closed,
Anderson asked Petitioner’s observer, Jose Collazzo, about the absence of the interpreter.
According to Anderson, Collazzo informed him that “a couple” of people that didn’t speak
English voted in the beginning. Collazzo did not inform Anderson that there were any problems
when these employees, who allegedly did not speak English, voted.8
Anderson also testified that the polls were opened for 3 or 4 hours during the morning
session and for a “couple” of hours in an afternoon session. Anderson also testified that both the
ballots and the notices were in Spanish and English.
Intervenor called Ruiz, its observer, as well as its shop steward, as a witness with
respect to this issue. Ruiz, who testified in English,9 testified that the interpreter arrived 40-45
minutes late. Ruiz asserted that during the 40-45 minutes that the interpreter was not present,
10 employees voted. Ruiz recalled some of the names of these 10 employees. They were Kevin
McCann, Jimmy Lopez, David Moran, Hector Pena, Mario ____, Roy Borella, Jose Collazzo
(Petitioner’s observer) and himself.
Ruiz also testified that all of these 10 employees “pretty much spoke both English and
Spanish.”
Ruiz further testified that when the voters arrived, the Board agent showed them a ballot
and instructed them that they should place a check mark in the box of their choice, either for
966, 124 or no union. The Board agent asked the employees if they understood his instructions.
All of the employees responded “yes” in English. The Board agent also asked if they had any

8 Collazzo did not testify.
9 Ruiz testified that he does not speak Spanish, but understands Spanish.
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questions or needed any translation help. Each of the employees responded “no” in English.
I find the testimony of Ruiz, which was essentially not disputed, to be believable and I
credit his testimony in its entirety. To the extent that Anderson’s hearsay testimony that Collazzo
told him that a “couple” of the 10 voters, who voted prior to the interpreter arriving, “did not
speak English,” is inconsistent with Ruiz’s testimony, I do not find Anderson’s testimony
persuasive or probative. I note that Collazzo did not testify to corroborate Anderson or to
provide firsthand testimony, which differed from Ruiz’s version of events. I also note that even
Anderson’s testimony of Collazzo’s report to him of the events prior to the interpreter arriving
indicates that Collazzo told Anderson that “there were no problems” with the voting.
I find, therefore, as Ruiz testified, that during the voting prior to the arrival of the
interpreter, the 10 employees, who voted, were all able to speak and understand English and all
of them understood the instructions provided by the Board agent.10
Petitioner argues that the interpreter’s conduct in arriving late to the election tended to
destroy confidence in the Board’s election procedures and “could reasonably be interpreted as
impugning the election standards we seek to maintain.” Glacier Packing Co., 210 NLRB 571,
573 (1974); Gory Associated Industries, 275 NLRB 1303 (1985). I disagree.
Petitioner’s contentions are based on the principles in General Shoe Corp., 77 NLRB
124, 126 (1948), where the Board concluded that conduct that may not be coercive or constitute
an unfair practice may nonetheless be sufficient to warrant setting aside an election. The Board
enunciated its “laboratory conditions” standard, which had been utilized in numerous
subsequent cases:11
In election proceedings, it is the Board’s function to provide
a laboratory in which an experiment may be conducted, under
conditions as nearly ideal as possible, to determine the uninhibited
desires of the employees. It is our duty to establish those
conditions; it is also our duty to determine whether they have been
fulfilled. When, in the rare extreme case, the standard drops too
low, because of our fault or that of others, the requisite laboratory
conditions are not present and the experiment must be conducted
over again.
I do not agree with Petitioner’s assertion that the “laboratory conditions” standard has
been violated by the mere fact that the Spanish interpreter arrived late to the election. While
there are a number of Board cases that set aside elections based on translation or language
issues,12 there is only one case that did so based on such lateness. That case, Gory

10 My findings crediting Ruiz’s testimony is buttressed by the fact that some names of the
employees, who voted in that time period, such as Kevin McCann and David Moran, suggest
that these individuals are likely to speak English as their first language. Further, Collazzo, who
was the observer for Local 966, also voted during that time. I find it unlikely that Local 966 would
select an observer, who was not able to speak English. Further, Anderson testified that he did
not speak Spanish and that he spoke to Collazzo after the vote about what went on during the
voting. Presumably, that conversation was in English. Thus, I find Collazzo was able to speak
and understand English.
11 See, for example, Fred Meyers Stores, 355 NLRB #93 slip op at 3 (2010).
12 Kraft Inc., 273 NLRB 1484, 1485 (1985); Alco Iron and Metal Co., 269 NLRB 590, 591-
Continued
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Associated, 275 NLRB 1303 (1985) is heavily relied upon by Petitioner and requires extensive
discussion.
I find that Petitioner’s reliance on Gory Associated to be misplaced for several reasons,
more fully explained below. I believe than this decision was wrongly decided and is contrary and
inconsistent with both prior and subsequent Board decisions. Although it has not been expressly
overruled, it has not been favorably cited or followed in any subsequent decisions, and in the
only case where it has been cited,13 it was distinguished, and in my view, implicitly overruled.
Gory Associated involved objections filed to an election, where the tally of ballots
showed 73 votes for and 43 against the union and 3 challenged ballots. The basis of the
objections was the lateness of a Haitian Creole interpreter.
The director conducted an investigation and issued a report recommending that the
election be set aside. The director found that due to the number of Spanish and French
surname employees in the unit,14 the parties agreed that the election materials (notices and
ballots) be printed in English, Spanish and Haitian Creole. The election was conducted by a
bilingual (Spanish and English) Board agent and the Miami Resident Office contracted with a
translation service to provide a Haitian Creole interpreter. The election was held from 6:00 a.m.
to 9:00 a.m. The interpreter arrived at approximately 7:30 a.m.
Based on the above facts, the director relying on General Shoe, as well as the cases
cited below, plus Paprikas Fono, 273 NLRB 1326 (1984), found that the “election herein was not
conducted with due regard to the needs of Haitian Creole speaking employees,” and that the
“requisite laboratory conditions for free expression of voter preferences were not present here.”
The Board majority of Chairman Dotson and Member Hunter affirmed the director’s
decision and set aside the election as follows:
Contrary to our dissenting colleague, we conclude that the
circumstances of this election raise a substantial doubt as to
whether the voters were afforded an effective and informed
expression of their preferences. Prior to the election, the parties
agreed that this electorate required Haitian Creole election
materials and a Haitian Creole interpreter…The Petitioner’s
exceptions do not refer to any specific evidence rebutting this
proof. Consequently, there are no substantial and material factual
issues warranting a hearing and the election must be set aside.
Our dissenting colleague apparently agrees with us about the
existence of a prima facie case, or else she would advocate
overruling the Employer’s objection without any hearing.
The Board also cited Kraft, supra and Paprikas Fono, supra in support of its decision.
Member Dennis dissented, noting that there was no showing that the lateness of the interpreter
_________________________
592 (1984); Rattan Art Gallery, Ltd., 260 NLRB 255, 256-257 (1982); Flo-Tronic Metal Mfg., 251
NLRB 1546 (1980).
13 Arthur Sarnow Candy Co., 311 NLRB 1137 (1993), enfd. 40 F.3d 552, 558-561 (2nd Cir.
1994).
14 The director noted that the eligibility list showed two Spanish surname employees and 15
French surname employees.
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affected the conduct of the election and would have granted the request of the union for a
hearing in order to determine whether the late arrival of the interpreter actually affected the
conduct of the election.
In my view, both the Board majority and the director’s decision are flawed due to several
critical errors in their reasoning. Although the evidence suggested that 15 employees may have
been Haitian Creole speakers,15 no evidence was adduced or cited as to how many of these 15
Haitian Creole speakers voted during the period when the interpreter was not present. This
critical omission from the evidence renders the Board majority’s view that prima facie proof of
“an objectionable failure to assure the effective and informed expression by all employees of
their voting desires” has been established to be suspect and contrary to established precedent.
In analogous circumstances, the Board has observed in Colgate Scaffolding Corp., 354
NLRB #76 slip op at 1 (2009):
It is well established that the failure of a poll to open precisely at
the scheduled time, or to be open for the full duration of the
scheduled voting period, does not by itself require that the election
be set aside. A rerun is only required where one of three
additional factors is present: (1) where the votes of those
employees “possibly excluded” by the defect could have been
determinative; (2) where there are “accompanying circumstances
that suggested that the vote may have been affected”; or (3)
where “it was impossible to determine whether such irregularity
affected the outcome of the election.” Midwest Canvas, 326 NLRB
58 (1998); Celotex Corp., 266 NLRB 802, 803 (1983); Jobbers
Meat Packing Co., 252 NLRB 41 (1980); Jim Kraut Chevrolet, 240
NLRB 460 (1974).
Thus, where the Board agent fails to open the polls on time or closes the polls too early,
it is not automatically objectionable. Rather, the Board inquires into the possibility that voters
were disenfranchised by the late opening or early closing, and if so, whether the number of such
employees, who could have been disenfranchised, would be determinative of the election
results.
It seems to me that the failure of the Board agent to adhere to the scheduled opening
and closing times is a more serious transgression than the interpreter coming late since the
former defect raises the possibility of disenfranchising voters altogether, while the latter defect
merely raised the possibility of confusion among the voters, who did vote, but who perhaps
might have benefited from the presence of an interpreter to answer any questions they might
have or to explain the election procedures to them. Therefore, I conclude that at minimum a
prima facie case of objectionable conduct, where an interpreter is late, requires a showing that
employees in need of the interpreter’s service actually voted during the period (or perhaps
declined to vote because there was no interpreter present) and that the number of such
employees were sufficient to affect the results of the election.
As noted, neither the Board nor the director in Gory Associated made any analysis of

15 I note that even this finding is questionable since it is apparently based primarily on the
director’s assumption that 15 individuals on the eligibility list had French surnames. Significantly,
no evidence was adduced that these 15 individuals could not read or understand English.
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these issues, and in the absence of any evidence of how many Haitian Creole speakers voted
during the interpreter’s absence, the decision cannot be reconciled with Board precedent.
Nonetheless, the decision has not been overruled. However, as I observed above, it has
not been followed or favorably cited in any subsequent case. It was cited and distinguished in
Arthur Sarnow Candy, supra and in my view was implicitly overruled. In Arthur Sarnow Candy,
the parties agreed that the ballots and notices would be printed in English, Spanish, Portuguese
and Haitian Creole. The Excelsior list contained 24 names, four or five of which “appeared to be
of French origin.” The employer requested that Spanish, Portuguese and Haitian Creole
interpreters be made available during the election. The Region administratively determined that
the employer had not demonstrated a need for a Haitian Creole interpreter and did not supply
one although it did supply Spanish and Portuguese interpreters.
The election results revealed that the petitioner won the election by one vote.
The employer filed objections based on the failure of the Board to supply a Haitian
Creole interpreter citing Gory Associated. The director issued a decision overruling the objection
and certifying the petitioner. The director distinguished Gory Associated on the grounds that
there the parties had agreed prior to the election that a Haitian Creole interpreter was necessary
to assist voters. The director also found that the employer in Arthur Sarnow Candy provided no
evidence that any eligible voter was unable to read Haitian Creole or that any eligible voter was
unable to speak English, Spanish or Portuguese (the language where a Board agent or
interpreter could give instructions during the election). Thus, the director concluded that “the
record in this matter contains no evidence that any eligible voter was affected by the absence of
a Haitian Creole interpreter.” 311 NLRB at 1138.
The director, therefore, overruled the objection and certified the union.
A request for review was filed and the Board unanimously denied the request for review
and included the following footnote:
In addition to the reasons given by the Regional Director
for overruling the Employer’s election objection, which we adopt,
we note that there is no evidence that the electorate was confused
by the voting procedures or unable to make an informed choice in
the election. See NLRB v. Precise Castings, 915 F.2d 1160 (7th
Cir. 1990); Bridgeport Fittings, 288 NLRB 124 (1988), enfd. 877
F.2d 180 (2nd Cir. 1989).
Id at 1137.
Thus, combining the director’s decision with the Board’s affirmance leads me to
conclude that Gory Associated has been implicitly overruled. The director relied substantially on
his finding that no evidence was presented by the employer in Arthur Sarnow Candy that any
eligible voter could not read Haitian Creole or was unable to speak English, Spanish or
Portuguese. Such a finding was not made in Gory Associated either, and the Board by adopting
the reasons given by the director in Arthur Sarnow Candy has affirmed the director’s conclusion
that the absence of such evidence by the employer was critical in finding no objectionable
conduct.
More significantly, the Board specifically made reference to another critical deficiency in
the employer’s evidence in Arthur Sarnow Candy, which would also apply to Gory Associated.
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That is the absence of any evidence “that the electorate was confused by the voting procedures
or unable to make an informed choice in the election.” The Board cited NLRB v. Precise
Castings, supra and Bridgeport Fittings, supra, which are consistent with the cases cited by both
the director and the Board in Gory Associated. NLRB v. Precise Castings is a Seventh Circuit
opinion, which affirmed the Board’s decision to certify a union, even though the Region had
refused to print ballots in all languages used in the workplace. There 10 of the 41 voters were
Spanish-speaking and the Region did print the notices in Spanish as well as English. The Court
upheld the Board’s decision to certify the union and overrule the employer’s objection. The
Court’s opinion observed that the employer “did not produce evidence suggesting that even one
of its Spanish-speaking employees was confused.” 915 F.2d at 1161. Bridgeport Fittings, supra,
the other case cited by the Board in Arthur Sarnow Candy, involved objections based on alleged
errors in Laotian translation on the ballots and argued “widespread confusion” among eligible
employees based on the organization of the ballot, which also involved Spanish and Portuguese
as well as English. The Board affirmed the acting director’s decision that the errors in Laotian
translation were minimal and were not sufficient to confuse Laotian voters. The decision also
found the ballots did not cause general voter confusion based on its format and layout.
The Second Circuit affirmed the Board’s decision agreeing that no confusion was
demonstrated by the employer. 877 F.2d at 187.
Further, an examination of the cases relied upon the director and the Board in Gory
Associated provides further support for the conclusion that Gory Associated can no longer be
considered valid precedent.
Kraft, supra, the case relied on by both the director and the Board, involved objections
asserting that a multi-language ballot in four languages contained inaccuracies in the
Vietnamese and Laotian translations, plus the fact that the ballots were laid out poorly so that
even English speakers would likely be confused. The Board majority found in favor of the
employer’s contention, agreeing that confusion was likely based on its view of the ballot and the
errors in Vietnamese and Laotian translation. The Board also relied on evidence of actual
confusion from affidavits of employees, who so asserted.
Notably, the Board also concluded in Kraft that the ballots were likely to be confusing
even to English speakers. Thus, Kraft is consistent with Bridgeport Fittings and Precise
Castings that the relevant inquiry to be made, where language issues are raised, is whether
such language defects on the ballots or notices or the lack of an interpreter were likely to or did
cause confusion among voters. Where as in Kraft, the Board can examine the ballot in question
and can and will make its own determination concerning the likely confusion, that is not the case
where the interpreter is not present, and in such a case, it is essential that the objecting party
produces evidence of voter confusion. Arthur Sarnow Candy, supra.16
Similarly, in Rattan Art Gallery, supra, another case cited by the director in Gory
Associated, the Board found the translation of the notices of election and the ballots and rights
of employees into Ilocano, a Filipino dialect was “confusing and incomplete.” 260 NLRB at 256.

16 I also note that the Second Circuit in Arthur Sarnow Candy sustained the Board’s position
in this regard finding that the employer had not offered any evidence that any Haitian Creole
speakers in fact were unable to understand the election notices and ballots and adduced no
evidence of voter confusion due to the failure to provide a Haitian Creole interpreter. 40 F.3d at
560.
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Furthermore, other Board and Court precedent, both before and after Gory Associated,
support my conclusion that the case has been implicitly overruled. Superior Truss & Panel Inc.,
334 NLRB 916, fn. 2 (2001) (Board affirms hearing officer’s conclusion that the use of English
only ballots did not cause confusion among voters. Indeed, the hearing officer cited Precise
Castings, supra for the proposition that the Board does not require the use of ballots in multiple
languages and that absence evidence of actual confusion among voters, there is no
objectionable conduct based on such a failure, even where a number of employees speak
Spanish as their primary language, and that between 10 and 15 voters did not understand,
speak, read or write English); Avante at Boca Raton Inc., 323 NLRB 555, 559 (1997) (Board
affirms hearing officer’s report that the lack of translation of the words “affiliated with” in the
union’s name on the election notices and ballots was not objectionable since no evidence was
presented that voters could not make a free election choice or were confused about their choice
because certain words, such as “affiliated with” were not translated); J.C. Brock Corp., 318
NLRB 403, 404 (1995) (use of separate ballots in Vietnamese and English did not create
reasonable doubt about the fairness of and validity of the election. Board observes that “it
requires more than mere speculative harm to overturn an election.” Id at 404. Note that the
acting director had recommended setting aside election based on Paprikas Fono, 273 NLRB
1326 (1984), a case also relied upon in Gory Associated. The standard applied in Paprikas
Fono that a departure by the Region from established precedents creates a reasonable doubt
about the fairness and validity of an election is used frequently in assessing whether Board
agent misconduct warrants setting aside an election. See Fresenius USA Mfg., 352 NLRB 679,
680-681 (2008). There is no “established procedure” requiring the presence of an interpreter
and the cases setting aside elections based on such irregularities involve much more serious
transgressions than the mere lateness of an interpreter); King’s River Pine, supra, 227 NLRB
299 (1976) (Board dismisses objection that director failed to furnish bilingual notices and ballots
since employer failed to present evidence that a substantial number of Spanish named
employees could not read or understand English); Alamo Lumber, 187 NLRB 384, 385-386
(1970) (failure to use bilingual (Spanish-English) ballots not objectionable since employees not
versed in English could indentify a ballot and were able to understand its use and how to mark
in order to express their choice).
Accordingly, based on the above analysis, I conclude that Gory Associated is not viable
precedent and has been implicitly overruled by Arthur Sarnow Candy and other cases cited.
Applying such valid precedent to the facts here requires that the Petitioner’s objection be
overruled. Here, as in Arthur Sarnow Candy,17 as well as King’s River Pine, 227 NLRB at 299,
Petitioner has not established that any employee, who voted during the time that the interpreter
was not present, was unable to read or understand English or read Spanish. Further, the
Petitioner has also failed to establish that any of these voters were confused about the election
or encountered any difficulties or problems when they voted due to the absence of the
interpreter. Arthur Sarnow Candy, supra at 1137, fn. 1 and at 40 F.3d at 560; Superior Truss &
Panel, supra, 334 NLRB at 916, fn. 2; Avante at Boca Raton, supra, 323 NLRB at 559; Precise
Castings, supra, 915 F.2d at 1163-1164; Bridgeport Fittings, supra, 288 NLRB at 124.
These findings would be sufficient in itself to require overruling Petitioner’s objections.
However, this conclusion is fortified by record evidence here that in fact employees, who voted
during the period of the interpreter’s absence, were able to understand English, and that in fact
were not confused about the ballot or the election choices and were not in need of an interpreter
to enable them to make an informed decision.

17 311 NLRB at 1138 and 40 F.3d at 559.
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Thus, I have credited the undisputed testimony of the Intervenor’s observer, Ruiz, that all
of the employees, who voted prior to the appearance of the interpreter, were able to speak and
understand English and that all of them voted without any problem or questions. His testimony
further established that the Board agent showed each voter a ballot, instructed them to place a
check mark in the box of their choice, either for Local 966, Local 124 or no union. The Board
agent asked if the voter understood his instructions. They all replied “yes” in English. He then
asked if they had any questions or needed translation help. The employees replied “no” in
English. Based on these findings of fact, I conclude that all of these 10 voters could speak and
understand English, that none of them were confused about the ballot or their choices and that
the absence of an interpreter had no effect on their ability to make an informed choice. Superior
Truss & Panel, supra at 919.18
While as I have detailed extensively below, I believe that Gory Associated has been
implicitly overruled by later cases, even if I am wrong about that conclusion, applying Gory
Associated here would not result in a finding that this objection has merit. Initially, I note that in
Gory Associated, the director concluded, and the Board agreed, that the interpreter did not
appear until halfway through the election period. The director characterized this as a
“substantial period of time,” where the interpreter was not present. Here, however, the
interpreter appeared from 45-60 minutes late during the morning polling period of three or four
hours. Significantly, there was also an afternoon polling session of a couple of hours, where
presumably the interpreter was present for the entire time.19 Thus, I do not believe that the
interpreter’s absence here can be considered to be for a “substantial” period of time as in Gory
Associated.
More importantly, Gory Associated concluded that the lateness of the interpreter resulted
in “prima facie proof of an objectionable failure to assure the effective and informed expression
by all employees of their voting desires.” Id at 1303. However, it also added that the petitioner
therein did not in its exceptions to the director’s decision “refer to any specific evidence rebutting
this proof.” Id.

18 Fortifying the above conclusion is the fact that the 10 voters in question included voters
named Kevin McCann and David Moran, as well as the observers for Petitioner (Jose Collazzo)
and Intervenor (Jose Ruiz). With respect to Moran and McCann, as I observed above, it is likely
that these individuals are English-speaking. While it is not conclusive that such named
individuals are English-speaking, it is certainly probable. I note in this regard that the Board has
made findings concerning language ability based on names. Indeed, in Gory Associated, supra,
the director relied solely on the fact that 15 French surname employees were on the eligibility
list to conclude that these employees were in need of the services of an interpreter. The Board
majority accepted this finding although significantly the dissent observed that up to “15 of the
124 eligible voters may have been Haitian Creole speakers.” Further, I have found that the two
observers, Ruiz and Collazzo, could understand and speak English. Therefore, a finding that
these four voters were unaffected by the absence of an interpreter is fortified. That reduces to
six the number of employees potentially affected by the interpreter’s absence, even absent
Ruiz’s testimony, which number is insufficient to affect the election results. The Intervenor won
the election by 18 votes with 1 challenge. Thus, even discounting my findings concerning
McCann and Moran, merely eliminating Ruiz and Collazzo (the observers) as employees, who
could have been affected by the absence of an interpreter, warrants a finding that the election
results were not influenced by the interpreter’s lateness.
19 There is no evidence to the contrary.
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Here, Intervenor had adduced evidence effectively rebutting any prima facie case that
can be found based on Gory Associated.
As I have detailed above, the evidence establishes that all of the voters, who voted in
the absence of the interpreter, were able to speak and understand English, were not confused
about the ballot and their choices and that the absence of an interpreter when they voted had no
effect on their ability to make an informed choice. Superior Truss & Panel, supra at 919.
Therefore, even assuming Gory Associated is still viable precedent, it does not provide support
for Petitioner’s assertion that objectionable conduct had been demonstrated.20
Consequently, I recommend that Petitioner’s Objection 9 be overruled.
Conclusion
Since I have found that Objection 6 should be sustained, and this objection
encompassed conduct that affected the entire unit, it is appropriate to recommended that the
election be set aside, and I shall do so.
ORDER
I therefore recommend21 that the election held on September 24, 2010 be set aside, and
the case be remanded to the Regional Director to schedule a new election.
Dated, Washington, D.C. February 3, 2011
____________________
Steven Fish,
Administrative Law Judge

20 I note that in General Shoe, supra, the Board cautioned that its principles are to be
applied in “rare and extreme” cases. I find that the facts do not demonstrate such a rare and
extreme case, where the Board’s election standards drop too low.
21 Under the provision of Sec. 102.69 of the Board’s Rules and Regulations, Exceptions to
this Report may be filed with the Board in Washington, DC within 14 days from the date of
issuance of this Report and recommendations. Exceptions must be received by the Board in
Washington by February 17, 2011.