Stericycle, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 2011

357 N.L.R.B. 582 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 61
582
Stericycle, Inc. and International Brotherhood of
Teamsters, Auto Truck Drivers, Line Drivers,
Car Haulers, and Helpers, Local No. 70 of Ala-
meda County, California, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Petitioner. Case
32–RC–005603
August 23, 2011
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER,
PEARCE, AND HAYES
Employees joining together with union assistance to
initiate legal action to redress unlawful employment
practices lies at the core of conduct protected by the Na-
tional Labor Relations Act. Whether the filing of such a
lawsuit, financed by a union, prior to a representation
election interferes with a fair election has generated con-
siderable controversy, however, creating uncertainty over
election results and the application of our objections ju-
risprudence to this protected activity aimed at vindicating
important employee rights. The current state of the law
leaves labor and management without clear guidance on
the line separating objectionable from unobjectionable
conduct. We accordingly announce today a new ap-
proach in an effort to draw a clear line in this important
area: we hold that a union engages in objectionable con-
duct warranting a second election by financing a lawsuit
filed during the narrow time period—known as the “crit-
ical period”—between the date of the filing of the repre-
sentation petition and the date of the election, which
States claims under Federal or State wage and hour laws
or other similar employment law claims on behalf of
employees in the unit.1 We also seek to give clear guid-
ance concerning the broad, nonobjectionable scope of the
protected pursuit of such legal redress prior to the filing
of an election petition, after the election has taken place,
and during the critical period by parties other than the
union seeking to represent the employees in collective
bargaining.2

1 Members Becker, Pearce, and Hayes join in this holding. Chair-
man Liebman dissents, for the reasons set forth in her separate opinion.
2 Chairman Liebman and Members Becker and Pearce join in this
portion of the opinion. Member Hayes dissents, for the reasons set
forth in his separate opinion.
The Facts and the Judge’s Decision3
In approximately September 2008,4 the Union began
an organizing campaign among a unit of the Employer’s
route drivers and dispatchers employed at its San
Leandro, California location. The Employer is in the
business of picking up, transporting, treating, and dispos-
ing of waste from medical facilities. The route drivers
are responsible for picking up the medical waste, trans-
porting it to the Employer’s treatment facilities, and
completing posttrip paperwork and inspections of their
vehicles. During the early stage of the employees’ or-
ganizational efforts, some drivers voiced concern that
they were not being paid for meal times, break times, and
overtime work. These drivers felt “pushed” by the Em-
ployer to complete their routes without claiming over-
time or taking meal or other breaks, and that their sacri-
fices in this regard were not acknowledged by the Em-
ployer, who failed to appreciate how long it took a driver
to complete his route.
In order to determine if the employees’ concerns could
be addressed through legal means, the Union, at an or-
ganizing meeting in September or October, introduced
the drivers to its outside counsel.5 The attorneys in-
formed the employees about their rights under Federal
and State law in regard to the Employer’s failure to pay
overtime wages and provide meal and break periods.
Copies of an “Attorney-Client Representation Agree-
ment” were distributed relating to litigation against the
Employer in this same regard, which provided that the
Union “has agreed to the payment of all fees, costs, dis-
bursement and litigation expenses.” Sixteen employees
signed such agreements, and returned them to either the
Union or the attorneys.
On November 14, the Union filed an election petition
seeking to represent a unit of the Employer’s drivers and
dispatchers. On November 19, the attorneys filed an
action in the United States District Court for the North-
ern District of California on behalf of the 16 unit em-
ployees and others similarly situated alleging the Em-
ployer’s failure to pay wages to the drivers in accordance

3 On April 24, 2009, Administrative Law Judge Jay R. Pollack is-
sued a report on objections and recommendations to the National Labor
Relations Board in this proceeding. The Employer filed exceptions and
a supporting brief. The Union’s Motion for Late Filing of Brief was
denied by Order of the Executive Secretary dated July 17, 2009.
The Board has considered the decision and the record in light of the
exceptions and brief and has decided to affirm the judge’s rulings,
findings and recommendations only to the extent consistent with this
Decision and Order.
4 All dates are in 2008, unless otherwise noted.
5 Counsel maintained a law firm that was frequently retained by the
Union.
STERICYCLE, INC. 583
with the Federal Fair Labor Standards Act6 (FLSA) and
California law.
The election was conducted on February 3, 2009.7 The
tally of ballots showed 23 votes for and 12 against the
Union. The Employer thereafter filed objections to the
election, asserting, inter alia, that the Union had imper-
missibly influenced the outcome of the election by filing
and funding the lawsuit during the critical period prior to
the election.
The judge overruled the objection. He observed that
existing Board precedent holds that a union does not en-
gage in objectionable conduct by providing unit employ-
ees free legal services to investigate, prepare, and file a
lawsuit, even during the critical period prior to an elec-
tion, asserting their claims under the FLSA. Novotel
New York, 321 NLRB 624 (1996). The judge acknowl-
edged that the United States Court of Appeals for the
District of Columbia Circuit has disagreed with Novotel,
finding that the provision of free legal services during the
critical period constitutes an objectionable grant of bene-
fits to employees that improperly influences employee
free choice in an impending election. Freund Baking Co.
v. NLRB, 165 F.3d 928 (D.C. Cir. 1999).8 Nevertheless,
the judge, duty bound to apply Board law, found the Un-
ion’s conduct here to be unobjectionable under Novotel.
Analysis
I.
Sixteen employees here joined together to file a law-
suit to secure payment of wages in accordance with law.
The Supreme Court has made clear that Section 7 of the
Act specifically affords protection to employees “when
they seek to improve working conditions through resort
to administrative and judicial forums.” Eastex, Inc. v.
NLRB, 437 U.S. 556, 566 (1978). Individually, and even
as a group, however, employees often lack the infor-
mation, resources, money, and security needed to pursue
such litigation. Union assistance in the form of educa-
tion about legal rights, referral to knowledgeable law-
yers, and financing of litigation designed to vindicate
workplace rights lies at the core of the union and other
concerted activity for mutual aid and protection which
the Act was intended to protect. It is thus further settled
that efforts by a union to educate its members about their
employment rights and to initiate and fund litigation on

6 29 U.S.C. § 201 et seq.
7 About a month before the election, on January 7, 2009, the attor-
neys advised the 16 employees by letter that the Union was not paying
legal fees associated with the lawsuit and that the attorneys were han-
dling the case on a contingency basis.
8 The judge further correctly observed that the Sixth Circuit reached
a similar holding in a pre-Novotel decision. Nestle Ice Cream Co. v.
NLRB, 46 F.3d 578 (6th Cir. 1995).
behalf of its members enjoys both statutory and constitu-
tional protection. See In Re Primus, 436 U.S. 412, 426
(1978); Transportation Workers v. Michigan Bar, 401
U.S. 576, 585–586 (1971); Mine Workers District 12 v.
Illinois State Bar Assn., 389 U.S. 217, 221–222 (1967);
Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 8
(1964). These protections exist when unions assist
workers to obtain legal redress even at times when the
employees are not union members and when the union
does not represent the employees for the purpose of col-
lective bargaining. In fact, those are likely to be the
times when employees are most in need of such assis-
tance because, lacking union representation, they cannot
remedy their grievances through the simpler and less
expensive process created by collective-bargaining
agreements. We affirm today that union assistance to
nonmember employees in the form of education about
their rights, referral to competent counsel, and funding of
legal action, is protected under Section 7 concomitant
with the nonmember employees’ undisputed Section 7
right to join together for their mutual aid or protection
through resort to a judicial forum.
Of course, important public policies beyond those em-
bodied in our Act are at stake here, including furthering
the statutory objectives of the FLSA and other Federal
and State employment laws. Workers without the pro-
tection of union representation or a collective-bargaining
agreement are more vulnerable to unlawful terms and
conditions of employment.9 Unions play an important
role in protecting the rights of such workers under a vari-
ety of workplace laws.10 The Board, in construing the
protections of the Act, must consider the implications of
the policies embodied in other laws amidst the changing
realities of the workplace. See Hoffman Plastic Com-
pounds, Inc. v. NLRB, 535 U.S. 137 (2002) (the Immi-
gration Reform and Control Act of 1986 precludes the
Board from awarding backpay to discriminatees not law-
fully entitled to be present and employed in the United
States); Southern Steamship Co. v. NLRB, 316 U.S. 31,
47 (1942) (Board should accommodate other statutory
objectives when administering the NLRA); Rutherford
Food Corp. v. McComb, 331 U.S. 722, 723 (1947) (rela-
tionship between NLRA and FLSA); NLRB v. Savair
Mfg. Co., 414 U.S. 270, 276 (1973) (Board has leeway to
modify its policy in light of its ongoing experience);
Sundor Brands, Inc., 334 NLRB 755, 757 (2001).
These strong statutory, constitutional, and policy inter-
ests were the foundation of the Board’s decision in Novo-
tel, supra. They continue to animate our decision today,

9 See Catherine Fisk, Union Lawyers and Employment Law, 23
Berkeley J. Emp. & Lab.L. 57, 58–59 (2002).
10 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 584
as does the Board’s responsibility to safeguard those in-
terests.
II.
The important and protected forms of education and
assistance described above are often provided during an
organizing drive. Unions are rarely in a position to iden-
tify violations of law or provide assistance until they are
called into the workplace by employees seeking repre-
sentation for purposes of collective bargaining. It is not
until the process of organizing begins, when union agents
are talking to employees, learning about their terms of
employment, and listening to their grievances, that un-
ions are likely to be in a position to assist employees to
vindicate their employment rights. See, e.g., Novotel,
supra, 321 NLRB at 633 (“At the inception of the organ-
izing campaign, complaints of alleged irregularities re-
garding Novotel’s payment of overtime wages were re-
ceived by the Petitioner from employees.”). The practi-
cal realities of the timing typical of this form of assis-
tance is what brings this case before us today and has
repeatedly brought this issue before the Board and the
courts of appeals over the last decade and a half.
The timing of such assistance raises a question because
employers and unions are generally prohibited from
granting benefits to employees during the critical period
prior to a representation election.11 The Board has long
held that a union’s actual grant of benefits to potential
voters during the critical period is “akin to an employer’s
grant of a wage increase in anticipation of a representa-
tion election . . . [which] subjects the donees to a con-
straint to vote for the donor union.” Wagner Electric
Corp., 167 NLRB 532, 533 (1967). See Mailing Ser-
vices, 293 NLRB 565, 565–566 (1989). The Board has
accordingly found objectionable the grant of a variety of
benefits by employers and unions during the critical pe-
riod as impermissibly influencing voter free choice and
the outcome of the election.12
The policy underlying this prohibition is that an em-
ployee’s vote should be governed by consideration of the
advantages and disadvantages of union representation
and not by inducements unrelated to the merits of such
representation. See, e.g., NLRB v. L & J Equipment Co.,

11 See Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 686 (1944)
(“[t]he action of employees with respect to the choice of their bargain-
ing agents may be induced by favors bestowed by the employer as well
as by his threats”).
12 See, e.g., Speco Corp., 298 NLRB 439 (1990) (employer grant of
improved medical insurance benefits); Delta Data Systems Corp., 279
NLRB 1284, 1290–1291 (1986) (employer grant of improved policies
regarding grievance procedure, absenteeism, and performance evalua-
tions); Mailing Services, supra, 293 NLRB at 565–566 (union’s provi-
sion of free medical screenings); Wagner Electric Corp., supra, 167
NLRB at 533 (union provision of life insurance).
745 F.2d 224, 231 (1984). The funding of legal services
by the Union here, in contrast, related to the chief work-
place concern expressed by employees and leading them
to consider unionization. The Board in Novotel found
such benefits to be meaningfully distinguishable from a
typical grant of extraneous inducements during the criti-
cal period which impermissibly influence employees’
votes. Novotel, 321 NLRB at 634–635.
III.
As the judge correctly observed, however, the Board’s
position on this issue has been viewed by the courts in
Freund and Nestle, supra, as incompatible with the gen-
eral prohibition against the conferral of benefits during
the critical period. Those courts have held that a narrow
limitation on this form of protected conduct during the
critical period is conducive to a free and fair choice of
bargaining representative by employees, which it is the
Board’s fundamental responsibility to ensure.13 As the
Freund court observed in denying enforcement to Novo-
tel, even conduct protected by Section 7 and the Consti-
tution may be required to yield during the critical period
to ensure employee free choice in a representation elec-
tion. See Freund Baking v. NLRB, supra, 165 F.3d at
935 (“the parties to a representation election do not retain
their full panoply of rights during the critical period”).
In view of the courts’ decisions, the time has come to
reconsider and clarify this area of the law for the benefit
of the parties involved in Board representation proceed-
ings, the employees participating in those elections, and
the efficient functioning of the Board’s electoral process
which should provide conclusive and expeditious results.
See Atlantic Limousine, 331 NLRB 1025, 1028 (2000).
Having reexamined our precedent in light of the rea-
soning expressed by the courts in Freund and Nestle, we
are persuaded that protection of employee free choice in
a representation election is better achieved by holding a
union’s filing of a wage and hour lawsuit on behalf of
unit employees during the critical preelection period ob-
jectionable, as the filing of such a lawsuit during the crit-
ical period could be viewed by unit employees as a gratu-
itous grant of benefits even though it is related to the
workplace concerns leading them to consider unioniza-
tion. Further, this regulation of a union’s filing of such
lawsuits will impinge only modestly on the Section 7 and
First Amendment rights implicated by the initiation of
such lawsuits, as the regulation is limited to the narrow
time period between the filing of the election petition and
the holding of the election. Accordingly, we adopt a new

13 See, e.g., NLRB v. A. J. Tower Co., 329 U.S. 324, 330–331 (1946).
STERICYCLE, INC. 585
rule today14 that a union ordinarily15 engages in objec-
tionable conduct warranting a second election by financ-
ing a lawsuit filed during the critical period, which states
claims under Federal or State wage and hours laws or
other similar employment law claims on behalf of em-
ployees in the unit.16 Applying this new rule to this pro-
ceeding, we find that the election must be set aside and a
new election held. The Union here expressly agreed to
fund “the payment of all fees, costs, disbursement, and
litigation expenses” of the lawsuit that was filed during
the critical period. The unit employees were explicitly so
notified, moreover. The 11th-hour notice to employees
that the Union was not funding the lawsuit, but that the
attorneys were handling the case on a contingency basis,
is not sufficiently ameliorative of the Union’s conduct
here.17
IV.
In light of the recurrence of this issue and the conflict-
ing decisions that have resulted, we believe we have an
obligation to do more here than simply announce a new
rule and apply it to the particular facts of this case.18 Our
duty to give clear guidance to parties, and the importance
of the employee rights at stake here, compel us to further
specify the scope of unobjectionable conduct in this ar-
ea.19 The obligation is particularly weighty here where

14 See Beth Israel Hospital v. NLRB, 437 U.S. 483, 508 (1978) (“The
authority of the Board to modify its construction of the Act in light of
its cumulative experience is, of course, clear.”).
15 One exception to this rule would be where provision of counsel or
other financial assistance in the vindication of legal rights is an existing
benefit of union membership and the union extends such assistance
only to union members. See NTA Graphics, 303 NLRB 801, 803–804
(1991); Dart Container, 277 NLRB 1369, 1369–1370 (1985). Of
course, the provision of an existing benefit of union membership would
be objectionable if unit employees could obtain it by joining the union
before the election but would be ineligible if they joined the union after
the election. Id. at 1370 fn. 8.
16 We hold only that such conduct is objectionable in a representa-
tion proceeding, not that it is an unfair labor practice. Moreover, our
new rule does not extend to the filing of unfair labor practices. See
Freund Baking, supra at 934.
17 In light of our holding, it is unnecessary to address the Employer’s
exception that the judge erred in excluding evidence that the Union
offered to drop the lawsuit in exchange for a card-check agreement.
18 See Smith’s Food & Drug Centers, 320 NLRB 844, 846 (1996)
(“The Board has an obligation to provide clear guidance wherever
possible so that parties can understand the legal requirements imposed
on them and reasonably predict the consequences of their actions.”).
19 Our concurring colleague criticizes our provision of such guidance
as “creat[ing] what is essentially a road map for how unions can pro-
vide gratuitous benefits, in the form of legal services, to voting em-
ployees without running afoul of the Act.” However, we believe it is
our statutory duty to provide clear guidance to employees, employers,
and unions to the extent possible when construing the Act. We also
believe that petitioning the Government for redress of grievances under
Federal or State law is not accurately characterized as the provision of
“gratuitous benefits.” While the Board, with judicial approval, has held
we have placed temporal limits on otherwise protected
conduct, the violation of which results in overturning the
express will of a majority of employees. Moreover, be-
cause out decision conflicts to some degree with the im-
portant public policy favoring full and vigorous en-
forcement of workplace laws and may be subject to at-
tack for that reason, it is imperative that we articulate and
explain the limits of its reach. In other words, our deci-
sion today represents a balance of interests and can only
be understood by specifying what remains on the unob-
jectionable side of the scale.20
Union conduct to educate employees concerning their
rights under labor laws remains protected and unobjec-
tionable during the critical period before a representation
election (as well as before and after the critical period).
Unions can inform employees about their rights, assist
them in identifying violations, urge them to seek relief,
and even refer them to competent counsel without cast-
ing into question subsequent election results. “Early in
the history of the administration of the Act the Board
recognized the importance of freedom of communication
to the free exercise of organization rights.” Central
Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972).
“[E]spousal of the cause of labor is entitled to no higher
constitutional protection than the espousal of any other
lawful cause. It is entitled to the same protection.”
Thomas v. Collins, 323 U.S. 516, 538 (1945). Protected
communication includes, but is not limited to, discussion
of collective bargaining and the right to organize under
the NLRA, employee rights under safety, health, and
wage, and hour laws, and the right of employees to act
together for their mutual aid or protection under the
NLRA and other laws. Finally, just as a union may refer
employees to competent counsel without provoking a
colorable objection, such counsel may file suit on behalf
of employees, even during the critical period, so long as
the union does not fund the litigation directly or indirect-
ly, and the lawyers are acting solely in the interest of
their employee clients and not as the union’s agents.

that speech that would be protected at other times may, during the
critical period, be found objectionable, we nevertheless have an obliga-
tion to draw clear lines in so holding. Cf. Reno v. American Civil Lib-
erties Union, 521 U.S. 844, 871–872 (1997) (“The vagueness of such a
regulation raises special First Amendment concerns because of its
obvious chilling effect on free speech.”).
20 Our concurring colleague finds it unnecessary to “specify the
scope of unobjectionable conduct in this area.” But, as we explain
above, application of the Board’s objections jurisprudence in this area
involves a balance of important interests, not only under our statute but
other important Federal and State statutes as well as the First Amend-
ment. That balance cannot be struck without specifying what falls on
both sides of the tipping point. Thus, the description of what is unob-
jectionable conduct in this area is an essential part of our holding that
the conduct at issue here was objectionable.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 586
When lawyers make an independent judgment to initiate
litigation on behalf of clients to whom they owe an ex-
clusive duty of loyalty, either pursuant to a fee agreement
with the clients or on a contingency basis, they act as
third parties, even if in other contexts they represent the
union, and the application of our traditional standards for
judging whether the actions of third parties are grounds
for objection do not suggest they would be under these
circumstances. See Hollingsworth Management Service,
342 NLRB 556, 558 (2004); Westwood Horizons Hotel,
270 NLRB 802, 803 (1984).21
V.
A key remaining question is whether a union may file
and fund employment-related litigation on behalf of em-
ployees prior to the filing of an election petition. The
Board frequently is faced, in both the representation and
unfair labor practice context, with determining whether
conduct is permissible that occurs during an organizing
campaign, but prior to the filing of a representation peti-
tion and the onset of the critical period. The Board’s
long-settled rule is that, with rare exception, only con-
duct occurring during the critical period between the fil-
ing of the petition and the date of the election may serve
as a basis for the setting aside of an election. See Wy-
andanch Day Care Center, 323 NLRB 339 fn. 2 (1997);
Ideal Electric & Mfg. Co., 134 NLRB 1275, 1278
(1961). In Ideal Electric, the Board stated, “when the
Board’s processes have been invoked [by the filing of a
petition] and a prompt election may be anticipated pursu-
ant to present procedures, we believe that conduct there-
after which tends to prevent a free election should appro-
priately be considered as a postelection objection.” Id. at
1278. The Board focuses on this time period because the
probability that coercion or other improper influence will
affect employees’ choice is then at its highest, thus, justi-
fying special scrutiny of employer and union actions,
while at the same time avoiding litigation over matters
remote in time from the election. See NLRB v. Wis-Pak
Foods, 125 F.3d 518, 521 (7th Cir. 1997); National

21 Contrary to our concurring colleague, in Freund Baking, the Dis-
trict of Columbia Circuit made clear that,
in the post-election proceeding upon Freund’s objections, the Region-
al Director referred to the Union itself as having filed the lawsuit. The
record does not indicate that the Union ever disputed that characteriza-
tion before the Regional Director or filed a conditional cross-
exception to it before the Board. Therefore, we treat the Union’s re-
sponsibility for the suit as having been conclusively established.
165 F.3d at 932. In other words, counsel in that case was not acting as a
third party for purposes of determining whether his conduct was objectiona-
ble, but as an agent of the union. In a case alleging an objectionable grant of
benefits, we do not read the court’s opinion as rendering irrelevant the ques-
tion of whether it was a party that actually granted the benefits.
League of Professional Baseball Clubs, 330 NLRB 670,
676 (2000).
Consistent with these settled principles, a union does
not engage in objectionable conduct by funding em-
ployment-related litigation on behalf of employees so
long as the litigation is commenced prior to the filing of
an election petition.22 Unions typically learn about em-
ployees’ workplace concerns in the earliest stages of or-
ganizing, prior to the filing of an election petition, as we
observed above. Based on the voicing of these concerns,
the union may investigate and discover during this prepe-
tition period colorable claims of violation of the FLSA or
other employment laws. These circumstances constitute
a legitimate justification for seeking legal redress prepeti-
tion akin to an employer’s legitimate business justifica-
tion for the grant of a wage increase during that time
period. This is particularly so when the passage of time
will bar or reduce the employees’ claim. For example,
under the FLSA, an employee can recover backpay only
2 or, in the case of willful violations, 3 years back from
when they file their claim.23 Thus, if a union discovers
employees are being paid less than the minimum wage
early in an organizing drive, but must wait until after the
election to initiate litigation on their behalf, the employ-
ees may lose months of backpay they would otherwise
have recovered under the FLSA.
A contrary approach would leave open the troubling
question of just how long prior to the filing of a petition
assisting employees in this manner would constitute
grounds for objection, and may be tantamount to pre-
cluding all such action until after the election has taken
place. The vindication of the important employee rights
and public policies at stake precludes such an approach.24
While those interests may be required to yield during the
critical period to ensure a fair election process, as we
have indicated above, they are not required to yield be-
fore that period even begins.25

22 Consequently, if a lawsuit is filed prepetition, then maintenance of
the lawsuit, including the union’s continued financial support of the
litigation, during the critical period is not objectionable, just as a wage
increase or improvement of benefits properly granted prepetition can
continue during the critical period.
23 29 U.S.C. § 255.
24 For example, the Employer’s medical waste business, handling
blood, needles, pharmaceuticals, and the like, is heavily regulated by
public health authorities including the Occupational Health and Safety
Administration. We do not intend our decision today to restrict, deter,
or delay prepetition union assistance to employees seeking legal or
administrative redress for violations of safety rules intended to protect
employees, the public, or both.
25 To be sure, the Board’s obligation to ensure a fair election process
has resulted in the consideration of prepetition conduct in limited cir-
cumstances, resulting in a few narrow exceptions to the rule of Ideal
Electric, supra. These instances have involved direct promises of bene-
fits to employees in exchange for signing an authorization card. See
STERICYCLE, INC. 587
The union, of course, controls the timing of its filing of
a petition for an election. Thus, on the one hand, the rule
we announce today imposes, under most circumstances,
a modest burden on the statutorily and constitutionally
protected activity at issue by requiring that, if it wishes to
assist employees in vindicating their employment rights
by funding litigation, a union must delay filing a petition
for an election until after litigation is initiated or delay
initiation of litigation or funding of its pursuit until after
the election. On the other hand, because a union may
control the timing of both events, it may be argued that
funding a lawsuit filed 1 day before the filing of a peti-
tion has no less impact on employee free choice than
funding a lawsuit filed 1 day after the filing of a petition.
Here, as in many other areas of labor policy, “[t]he ulti-
mate problem is the balancing of the conflicting legiti-
mate interests.” NLRB v. Teamsters Local 449, 353 U.S.
87, 96 (1957). Such balancing often requires the draw-
ing of clear, temporal lines even under circumstances
where, at the margins, differences in the impact of the
conduct at issue may be small. See, e.g., Bruckner Nurs-
ing Home, 262 NLRB 955 (1982) (employer can lawful-
ly recognize a union without an election while a rival
union is organizing but such recognition becomes unlaw-
ful once the rival has filed a petition). As the District of
Columbia Circuit observed in Freund Baking, “Under the
Act contestants in a representation election are routinely
prevented from exercising certain rights during the brief
time when their exercise might interfere with the voters’
free choice.” 165 F.3d at 934. Our holding today is con-
sistent with that principle.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the Notice of Second Election,
including employees who did not work during that period
because they were ill, on vacation, or temporarily laid

Royal Packaging Corp., 284 NLRB 317 (1987) (prepetition offer to
obtain reinstatement of employee’s daughter); Gibson’s Discount Cen-
ter, 214 NLRB 221 (1974) (prepetition offer to waive union initiation
fees); Lyon’s Restaurants, 234 NLRB 178 (1978) (prepetition statement
to employees that they had to join the union or they would not work
was instrumental in obtaining signed authorization cards). Such cir-
cumstances are not presented in this case. Moreover, in creating these
exceptions, the Board has emphasized that it did “not otherwise intend
any broad departure from the Ideal Electric rule.” Gibsons, supra at
222 fn. 3. Thus, contrary to our concurring colleague, NLRB v. Savair
Mfg. Co., 414 U.S. 270 (1973), is consistent with the rule we announce
here.
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the election directed here and who retained their employ-
ee status during the eligibility period and their replace-
ments. Those in the military services may vote if they
appear in person at the polls. Ineligible to vote are em-
ployees who have quit or been discharged for cause since
the payroll period, striking employees who have been
discharged for cause since the strike began and who have
not been rehired or reinstated before the date of the elec-
tion directed here, and employees engaged in an econom-
ic strike that began more than 12 months before the date
of the election directed here and who have been perma-
nently replaced. Those eligible shall vote whether they
desire to be represented for collective bargaining by In-
ternational Brotherhood of Teamsters, Auto Truck Driv-
ers, Line Drivers, Car Haulers, and Helpers, Local No.
70, of Alameda County, California, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election shall have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon, 394
U.S. 759 (1969). Accordingly, it is directed that an eli-
gibility list containing the full names and addresses of all
the eligible voters must be filed by the Employer with the
Regional Director within 7 days from the date of the No-
tice of Second Election. North Macon Health Care Fa-
cility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper
objections are filed.

MEMBER HAYES, concurring in part and dissenting in part.
Consistent with circuit court precedent, I join Mem-
bers Becker and Pearce in overruling Novotel New York,
321 NLRB 624 (1996), to the extent of holding that the
Union’s involvement with and support for the lawsuit at
issue during the critical period constitutes objectionable
conduct sufficient to warrant setting aside the election. I
disagree, however, with their decision, endorsed by
Chairman Liebman, to go beyond the facts of this case to
create what is essentially a road map for how unions can
provide gratuitous benefits, in the form of legal services,
to voting employees without running afoul of the Act. In
my view, issues concerning the objectionable nature of a
union’s support for, or involvement with, legal action
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 588
undertaken on behalf of voting employees are best re-
solved on a case-by-case basis. Accordingly, although I
agree that the Union’s conduct here warrants setting
aside the election, I dissent from the remainder of the
majority opinion.
As the majority acknowledges, both the District of Co-
lumbia and Sixth Circuit courts of appeals have ad-
dressed the objectionable nature of union conduct like
that before the Board here. In those cases, the courts
invoked the Board’s prohibition against parties to an
election providing gratuities to voters and found that the
unions engaged in objectionable conduct sufficient to set
aside the election by filing a lawsuit, or sponsoring a
lawsuit filed, on behalf of voting employees against their
employer during the critical period. See Freund Baking
Co. v. NLRB, 165 F.3d 928 (D.C. Cir. 1999); and Nestle
Ice Cream Co. v. NLRB, 46 F.3d 578 (6th Cir. 1995).
The courts did so after reviewing the facts and arguments
presented in each case to determine whether the union
conduct “improperly influenced the impending election.”
Freund Baking Co., supra, 165 F.3d at 934; see also Nes-
tle Ice Cream Co., supra, 46 F.3d at 583 (court looked to
whether the union’s conduct with respect to the lawsuit
had the “potential to influence” voters).
Guided by the above precedent, it is clear that the Un-
ion’s conduct here was bound to improperly influence
voters in the election. In this regard, prior to the filing of
the representation petition, the Union’s attorneys dis-
cussed with the employees a potential Federal Fair Labor
Standards Act (FLSA) lawsuit against the Employer and
how they could recover money from the Employer. At
this time, the attorneys provided the employees with at-
torney-client representation agreements. The agreements
stated that the Union would pay all litigation expenses on
behalf of the employees, thereby conveying to the em-
ployees that the opportunity to recover money from the
Employer would be at no cost to them. Based on the
information provided by the Union’s attorneys, 16 unit
employees signed the representation agreements and re-
turned them to the Union. The Union then filed the rep-
resentation petition on November 4, 2008, and its attor-
neys filed the FLSA lawsuit shortly thereafter. The Un-
ion went on to win the election by an 11 vote margin.
On these facts, I would find that the Union’s involvement
with and support for the FLSA lawsuit improperly influ-
enced the impending election and warrants setting aside
the election.
Unlike my colleagues, however, I would not go be-
yond the facts of this case to “further specify the scope of
unobjectionable conduct in this area.” (Emphasis add-
ed.) While I do not dispute the Board’s authority to pro-
vide legal guidance to parties practicing before it, I ques-
tion the appropriateness of such guidance when it reads
like a manual to unions on how they can provide gratui-
tous benefits to voters before and during the critical peri-
od without engaging in objectionable conduct.1 Moreo-
ver, I have genuine concerns that the “clear guidance”
provided by the majority here may lead parties astray as
to the “scope of unobjectionable conduct in this area”
and ultimately put them on questionable ground should
the issue make its way to the appellate courts. In this
regard, although the majority’s decision indicates that
unions are essentially unbridled in their prepetition in-
volvement in lawsuits on behalf of voting employees and
that a union’s critical period objectionable conduct is
limited to the financing of a wage and hour lawsuit on
behalf of employees, circuit courts may well read rele-
vant precedent to reach a contrary conclusion. See NLRB
v. Savair Mfg. Co., 414 U.S. 270 (1973) (Court found
prepetition promise of monetary benefit, in the form of
union’s promise to waive initiation fees, to be objection-
able); Freund Baking, supra (court found union to have
engaged in objectionable conduct where it merely sup-
ported the filing of a lawsuit, absent any definitive evi-
dence that the union actually financed the lawsuit);2 and

1 In seeking to further specify the scope of unobjectionable conduct,
my colleagues assert that they address “petitions to the Government for
the redress of grievances under Federal or State law,” not gratuitous
benefits. Assuming the lawsuit-related conduct addressed in this por-
tion of the majority’s decision is properly characterized as such a peti-
tion, this characterization, alone, may not protect the conduct from
being found to be objectionable. As the Freund court indicated, the
lawsuit itself is not objectionable. It is the potential for the filing of the
suit to interfere with the employees’ right to a free and fair vote by
tainting “an atmosphere amenable to rationale decisionmaking” that is
objectionable. Thus, while unions may have First Amendment and Sec.
7 rights to file lawsuits against employers, they “do not retain their full
panoply of rights” to do so in the period before the election. Freund
Baking, supra, 165 F.3d at 935.
2 The majority advises that a union is not responsible, for purposes
of the Board’s objections jurisprudence, for a lawsuit filed by an attor-
ney on behalf of a group of employee-voters, so long as the union does
not fund the litigation and the attorney is not acting as the union’s agent
in filing the suit. My colleagues appear to view Freund as consistent
with this guidance because, in their view, the court found that the attor-
ney involved in Freund acted as an agent of the union in filing the
lawsuit. I disagree.
In Freund, the court engaged in no discussion of agency principles
and in no way indicated that agency between the attorney filing the suit
and the union was a predicate to holding the union responsible for the
suit for objectionable conduct purposes. Instead, the court found that
by publicizing the previously filed lawsuit in a campaign flyer to em-
ployees, the union demonstrated its support for the lawsuit and thereby
encouraged employees to believe it was responsible for the suit. The
court concluded that the lack of evidence linking the union to the filing
or financing of the suit was “immaterial” because it was the “appear-
ance of [the union’s] support, not the support itself, that may have
interfered with the voters’ decisionmaking.” Freund Baking, supra,
165 F.3d at 145. Thus, Freund establishes that even without evidence
of a union’s financing of a lawsuit or the existence of an agency rela-
STERICYCLE, INC. 589
NLRB v. Madisonville Concrete Co., 552 F.2d 168 (6th
Cir. 1977) (court found union’s provision of general le-
gal services to a voting employee to be objectionable).
Indeed, I think it should remain an open question wheth-
er the Union’s prepetition conduct in this case, without
more, had the potential to improperly influence the elec-
tion.
Based on the foregoing, I would review a union’s sup-
port for or involvement with legal actions undertaken on
behalf of voting employees on a case-by-case basis to
determine if the union’s conduct may have improperly
influenced the election under the principles set forth in
the cited judicial precedent. Finding that the Union’s
conduct here clearly did so, I agree with my colleagues to
set aside the election. But I would go no further, and I
dissent from their decision to do so.

CHAIRMAN LIEBMAN, dissenting.
Today’s decision is prudent, given the court of appeals
decisions rejecting the Board’s treatment of union-
sponsored employment lawsuits as a potential basis for
setting aside a representation election.1 I agree with
Members Pearce and Becker, for the reasons reflected in
their opinion, that such lawsuits are unobjectionable if
filed outside the so-called critical period, i.e., before the
union petitions for a Board election or after the election
is over, or if filed by lawyers owing an exclusive duty of
loyalty to the plaintiff and not acting as agents of the
union. But because I would adhere to the Board’s estab-
lished law, which permits a lawsuit to be filed even dur-
ing the critical period,2 I dissent. Even the modified ap-
proach adopted today burdens activity protected by the
National Labor Relations Act and by the First Amend-
ment more than is necessary to preserve the integrity of
Board elections.3
In the Supreme Court’s words, “collective activity to
obtain meaningful access to the courts is a fundamental
right within the protection of the First Amendment.”4 No
one can seriously dispute that union-sponsored lawsuits,
like the one at issue here, are integral to unions’ efforts to

tionship between the union and the attorney filing the suit, the mere
appearance of union support for such a lawsuit is sufficient to hold the
union responsible for it for objectionable conduct purposes.
1 Freund Baking Co. v. NLRB, 165 F.3d 928 (D.C. Cir. 1999); Nestle
Ice Cream Co. v. NLRB, 46 F.3d 578 (6th Cir. 1995).
2 Novotel New York, 321 NLRB 624 (1996).
3 Today’s decision divides the Board into two separate majorities:
one that overrules prior Board law (Members Becker, Pearce, and
Hayes) governing union-sponsored lawsuits filed during a critical peri-
od and one that reaffirms precedent (Members Becker and Pearce and
myself) for lawsuits filed outside of that period or by counsel not acting
as agents of the union.
4 Transportation Workers v. Michigan Bar, 401 U.S. 576, 585
(1971).
improve working conditions, that they further the goals
of the underlying workplace statutes, and that they impli-
cate the protections of the Act and the Constitution. As
the Board has observed in the past, “[t]o hold that [such
lawsuits] nevertheless constitute[] grounds for setting
aside a Board election would be, to say the least, highly
anomalous.”5 Two Federal appellate courts have done
so, however. Their reasoning has not persuaded distin-
guished scholars,6 and I would prefer that the Board
stand its ground.
Making a union-sponsored lawsuit grounds for setting
aside a Board election forces a choice on employees who
want both the union’s representation in the workplace
and the union’s aid in the courts. Employees may have to
forego one option or the other. Either choice, of course,
means sacrificing protected rights. The price for seeking
workplace representation under the Act is giving up
meaningful and timely access to the courts to enforce
other workplace laws. The price for going to court with
the union’s help is giving up the union’s representation
on the job.
Under today’s decision, this dilemma exists during the
critical period only, but the length of that period cannot
be known in advance, and it may be substantial, especial-
ly if, for example, there is an extended preelection hear-
ing.7 It is only a partial answer to say that in some cases,
it will be possible to initiate a lawsuit before the union
files a representation petition, allowing both to proceed.
The underlying dilemma remains, constraining employ-
ees’ freedom to pursue their rights in both the workplace
and the courts, as they wish and when they wish.
The Board does not need to prohibit union-sponsored
employment litigation in order to preserve the integrity
of representation elections. Board law prohibits employ-
ers and unions from granting benefits to employees in
order to influence their votes. But as the Board has ex-
plained in the past, lawsuits like the one at issue here,
which addressed workers’ terms of employment, are fun-
damentally different from the sort of “extraneous in-
ducements of pecuniary value” that the Board finds ob-
jectionable.8
The Supreme Court has made clear that the Board
must avoid, if it can, construing the Act in a way that
significantly burdens the First Amendment right to peti-

5 Novotel, supra, 321 NLRB at 634.
6 Robert A. Gorman & Matthew W. Finkin, Basic Text on Labor
Law § 7.15 at 212 (2d ed. 2004); Catherine L. Fisk, Union Lawyers and
Employment Law, 23 Berkeley J. Emp. & Lab. L. 57 (2002).
7 Moreover, if a second election is required (because the first elec-
tion was set aside for irregularities), the critical period continues from
the date of the first election. Star Kist Caribe, Inc., 325 NLRB 304
(1998).
8 Novotel, supra, 321 NLRB at 625.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 590
tion.9 That case involved the Board’s view that it could
sanction concluded, meritless litigation that was aimed at
activity protected by the Act. Here, we are dealing with
something that approaches a prior restraint against litiga-

9 BE & K Construction Co. v. NLRB, 536 U.S. 56 (2002). Both Nes-
tle and Freund Baking, supra, were decided before the Supreme Court’s
decision. Neither case reflects the level of analysis that BE & K would
now seem to require.
tion that is not a reprisal against Section 7 activity, but is
itself such activity—as well as the exercise of the right to
petition and the freedom of association. Nothing in the
language of the National Labor Relations Act compels
the Board to find union-sponsored lawsuits objectionable
in the election context, whether broadly or narrowly.
Consistent with the principle of constitutional avoidance,
then, I would not do so.