UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


FREUND BAKING CO

v.

NLRB


97-1694a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: The National Labor Relations  Board certified
the Bakery, Confectionary, and Tobacco  Workers, Local 119, AFL-CIO as
the exclusive representa- tive of certain employees of Freund Baking
Company after  the Union won a representation election. Freund
neverthe- less refused to bargain, asserting that the Union had imper-
missibly interfered with the election by providing free legal 
services to the employees shortly before voting began. The  NLRB
rejected this argument and held that the Company's  refusal to bargain
violated ss 8(a)(1) and (5) of the National  Labor Relations Act, 29
U.S.C. ss 158(a)(1) and (5). Freund  petitions for review of the
Board's order, and the Board  cross-applies for its enforcement. For
the reasons set out  below, we grant review and deny enforcement.


I. Background


In October, 1996 the Union filed a petition with the NLRB  seeking
certification as the exclusive bargaining representa- tive of a group
of 41 Freund employees. In November the  Regional Director of the NLRB
held a hearing to determine  the appropriate bargaining unit. At the
hearing, a union  attorney elicited testimony from the president of
the Compa-


ny about its overtime pay practices. Shortly thereafter,  Freund sent a
letter to its employees acknowledging that it  had failed to pay
overtime in accordance with then-applicable  California law. Freund
assured the employees that its trans- gression had been inadvertent
and that it would promptly pay  all those to whom additional
compensation was due. In  December the Regional Director denied
Freund's motion to  dismiss the Union's petition and scheduled a
representation  election for January 30, 1997.


One week before the election four Freund employees sued  the Company on
behalf of all the workers in the proposed  bargaining unit, alleging
that Freund had failed to pay for  overtime as required by California
law. The employees were  represented by David A. Rosenfeld, Esq., who,
in addition to  representing the Union in this action, has several
times  before represented employees filing lawsuits against their 
employers just before a representation election. One day before the
Freund election, Union representatives  distributed to the Company's
employees a flyer, stating in  part: [O]n January 23, 1997 a Class
Action Law Suit was filed  against Freund ... on behalf of all the
employees to  recuperate [sic] all wages owed to you.


Freund ... has been in business for many years,  THERE IS NO excuse for
them to steal from the  Workers. The wage and hour laws have been in
affect  [sic] for many years. It's Freund [sic] obligations [sic] to 
know and to respect the laws.


VOTE FOR YOURSELF


VOTE UNION YES!


JUSTICE-DIGNITY-RESPECT


UNION YES!


Employees in the proposed bargaining unit returned 20  votes for and 15
against the Union. Seven ballots were  challenged either by Freund or
by the Union. The Regional 


Director, rejecting Freund's argument that the Union had  impermissibly
interfered with the election by sponsoring the  employees' lawsuit
against it, resolved enough of the chal- lenges to determine that the
Union had won. The Board  affirmed the Regional Director's decision.


When Freund nevertheless refused to bargain, the Union  filed an unfair
labor practice charge against the Company.  The General Counsel issued
a complaint and moved for  summary judgment before the Board, which
granted the  motion and ordered Freund to recognize the Union as the 
exclusive representative of the bargaining unit employees.  Freund now
petitions this court for review of the Board's  order, repeating its
claim that the Union's participation in the  lawsuit tainted the
election.*


II. Analysis


In reviewing the Board's decision we accept its findings of  fact if
they are supported by substantial evidence on the  record considered
as a whole. See Universal Camera Corp.  v. NLRB, 340 U.S. 474, 487-88
(1951). We defer to the  Board's construction of the NLRA if it is
reasonably defensi- ble, "though not if the Board failed to apply the
proper legal  standard." Noel Foods v. NLRB, 82 F.3d 1113, 1117 (D.C. 
Cir. 1996).


The Board's principal duty in conducting a representation  election is
"to insure the fair and free choice of bargaining  representatives by
employees." NLRB v. Savair Mfg. Co., 




__________

n * Freund raises a number of other procedural and substantive 
objections to the Board's order. Specifically, it claims that the 
election should be set aside because the Board erroneously deprived 
it of an opportunity to present evidence on its motion to dismiss the 
certification petition and denied its request for a post-election 
hearing. Freund further claims that the election result should be 
invalidated because the Union improperly monitored the voting and 
distributed misleading campaign literature. Having considered the 
factual and legal bases for these arguments, we conclude that they 
are insufficiently meritorious to warrant discussion in a published 


414 U.S. 270, 276 (1973). The Act is studiously neutral upon  the
merits of unionization, see id. at 278; its mandate to the  Board is
that elections accurately ascertain employees' senti- ment on the
question of representation. As both the Board  and the courts have
long recognized, this goal cannot be  achieved when either the
employer or the union engages in  campaign tactics that induce workers
to cast their votes upon  grounds other than the advantages and
disadvantages of  union representation. For example, an employer may
not  promise its employees a benefit, such as vacation or seniority, 
contingent upon the union's defeat in an upcoming election.  See NLRB
v. Flomatic Corp., 347 F.2d 74, 76-77 (2d Cir.  1965). And in the
critical period between the filing of a  certification petition and
the holding of an election, an em- ployer may not grant an
unconditional benefit unless it has a  legitimate business reason for
doing so. See Torbitt & Cas- tleman, Inc. v. NLRB, 123 F.3d 899,
908-09 (6th Cir. 1997);  St. Francis Fed'n of Nurses and Health
Professionals v.  NLRB, 729 F.2d 844, 850-51 (D.C. Cir. 1984). Nor may
an  employer cancel a planned wage increase in response to a  union's
organizational effort, lest employees reject the union  out of fear of
further retaliation. See GAF Corp. v. NLRB,  488 F.2d 306, 308-09 (2d


Just as the Act prohibits an employer from using threats or  rewards as
campaign tactics, it bars both crude and subtle  forms of vote-buying
on the part of the union. For example,  a union is prohibited not only
from blatantly giving an  employee anything of value in exchange for
his support, see  Plastic Masters, Inc. v. NLRB, 512 F.2d 449 (6th
Cir. 1975)  (union tainted representation election by making excessive
 payments for time lost from work and for expenses incurred  in aiding
union's organizing effort), but also from uncondition- ally providing
a benefit in a way that tacitly obliges the  employee to vote for it.
See Savair, 414 U.S. at 277-78  (union tainted election by waiving
initiation fee for employees  who signed "recognition slips" because
those who signed  solely to obtain waiver might feel morally obligated
to vote  for union). Applying the latter rule, the Board has held that
 a union may not give voters anything of "tangible economic 


benefit" during the critical period before an election. Mail- ing
Servs., Inc., 293 N.L.R.B. 565, 565-66 (1989) (medical  screenings);
Wagner Elec. Corp., 167 N.L.R.B. 532, 533  (1967) (life insurance).
Even when such gratuities are offered  upon the same terms to
employees who make no pledge of  support, the Board has explained,
they impose upon voters an  implicit "constraint to vote for the donor
Union." Mailing  Servs., 293 N.L.R.B. at 565.


Relying upon these principles, Freund argues that the  Union's aid to
the employees in bringing their lawsuit against  the Company amounted
to an indirect form of vote-buying in  that the Union thereby gave the
voters free legal services.  This gift is just as likely as free
medical screenings or free  life insurance to have constrained
employees to vote for the  Union out of a sense of obligation rather
than upon an  assessment of the merits of union representation.
Indeed,  the only other court to have considered the issue concluded 
that a union's pre-election filing of a lawsuit on behalf of 
employee-voters violated the rule against giving gratuities to 
voters. See Nestle Ice Cream Co. v. NLRB, 46 F.3d 578 (6th  Cir.
1995). In the present case, moreover, the Union first  publicized the
lawsuit on the day before the election, which  greatly increased the
likelihood that it would interfere with  the employees' free


Such is Freund's argument. Before considering the merits  of Freund's
legal position, we pause to address the Union's  challenge to its
factual underpinning.


A.The Union's Participation in the Lawsuit


As the Union observes, there is no definitive evidence  linking it to
the filing of the suit against the Company. True,  both the employee
plaintiffs in that suit and the Union here  are represented by Mr.
Rosenfeld; and yes, the Union used  the suit to argue its case for
election in the flyer it distributed  to Freund's employees. Although
both facts suggest that the 




__________

n * We note that Mr. Rosenfeld represented the union and the  employee
plaintiffs in the Nestle case as well. There, too, the suit  was
announced to the employees the day before the election.


Union sponsored the suit, they do not "establish either that  the Union
in fact did finance the litigation, or, if it did, ever  publicized
that assistance to the employees." Therefore, the  Union contends,
Freund has failed to prove that, even under  the Company's view of the
law, the Union "provided an  objectionable benefit" to the employees
before the election.


This argument need not detain us long. If the Union was  not
responsible for the suit, it certainly encouraged voters to  believe
it was: The Union announced the suit in a campaign  flyer consisting
exclusively of pro-Union and anti-Freund  commentary and ending with
the slogan "Union Yes!" Em- ployees reading this flyer could not have
failed to get the  message that they had the Union to thank for their
legal  representation. That the flyer does not itself prove Union 
sponsorship of the suit is immaterial; it is the appearance of 
support, not the support itself, that may have interfered with  the


Indeed, in the post-election proceeding upon Freund's ob- jections, the
Regional Director referred to the Union itself as  having filed the
lawsuit. The record does not indicate that  the Union ever disputed
that characterization before the  Regional Director or filed a
conditional cross-exception to it  before the Board. Therefore, we
treat the Union's responsi- bility for the suit as having been
conclusively established.


B.The Significance of the Union Lawsuit


The Board, in contending that the Union's filing of the  lawsuit did
not taint the representation election, does not  deny that the Union
provided free legal services to voters;  nor does it suggest that the
filing of the suit may not have  affected the outcome of the election.
Instead, invoking its  own prior decision in Novotel New York, 321
N.L.R.B. 624  (1996), the Board contends that the Act permits a union
to  sue an employer on behalf of its employees prior to an  election
because such conduct is relevant to the "critical  question facing
employees in the election: namely, whether  the union can improve
working conditions." The Board also  argues that a contrary holding
would discourage unions from 


engaging in activity protected both by the Act and by the  First
Amendment to the Constitution of the United States.


1.Bearing of a Lawsuit upon the Merits of an Election


The Board's primary claim is that the Union's filing of the  suit
demonstrated the vigor with which it would defend the  rights of
Freund's employees and therefore enabled those  employees to cast more
informed votes. Even more to the  point, according to the Board, the
suit gave Freund's employ- ees an opportunity to evaluate the Union's
ability to improve  the terms of their employment: "Such assistance
can demon- strate that the union knows how to improve working condi-
tions in the plant, is capable of doing so, and is willing to do 


We agree that a union's willingness to prosecute a suit  designed to
insure that the wages paid to potential members  are legally adequate
is at least relevant to the question  whether its election would
benefit the employees. See NLRB  v. L & J Equip. Co., 745 F.2d 224,
231 (3d Cir. 1984) ("[A]n  employee's vote should be governed ... by
consideration of  the advantages and disadvantages of unionization in
his or  her work environment"). Indeed, in the abstract we suppose 
that anything a union does or has done--its track record, so  to
speak--may be relevant to the merits of a representation  election
insofar as it helps employees to evaluate the likeli- hood that
representation by a particular union will improve  those conditions.


This only shows, however, that the Board's reasoning  proves too much:
It is equally applicable to any number of  other gratuities that a
union might want to give employees in  the pre-election period,
including the specific medical and life  insurance benefits, the gift
of which the Board has held is  forbidden by the Act. Like free legal
services, medical and  insurance benefits are at least relevant to the
union's claim  that it is willing and able to provide the employees
with more  desirable working conditions. Nonetheless, although a union
 is free to advertise the benefits for which its members are 
eligible, it may not give voters "free samples" of health or 
insurance benefits before an election. See, respectively, 


Mailing Servs., 293 N.L.R.B. at 565-66, and Wagner, 167  N.L.R.B. at
533. The Board's attempt to distinguish free  legal services therefore
fails.


Moreover, filing a lawsuit prior to an election is hardly, by  itself,
probative on the question whether "the union knows  how to improve
working conditions in the plant, is capable of  doing so, and is
willing to do so." Indeed, the lawsuit may be  meritless, even
frivolous, for all one can tell merely from its  having been filed. In
the Nestle case, for example, the pre- election suit was dismissed
(after the election) for failure to  state a claim. When the union
filed an amended complaint  and the employer again moved to dismiss
and added a  request for sanctions, the union agreed to withdraw its
com- plaint with prejudice in exchange for the employer's with-
drawing its motion for sanctions. See 46 F.3d at 580. We  express no
view upon the merits of the union-sponsored  lawsuit involved in this
case, of course: Like Freund's em- ployees, we are in no position to
make any informed judgment  on the subject. Our point is only that the
Board's first  reason for rejecting Freund's objection does not


2.Section 7


The Board next suggests that a union's suit against an  employer on
behalf of voters in a representation election is  both protected by s
7 of the Act and "consistent with labor's  historical role of helping
employees to improve their working  conditions." As the Board points
out, unions frequently (and  uncontroversially) file unfair labor
practice charges against  employers in the pre-election period;
indeed, in some cases  they may even recover money for the employees
as a result.  Furthermore, according to the Board, a union's effort to
 advance the interests of employees through litigation de- serves
special solicitude because it is among the "core" activi- ties


The Board's argument here misses the point being pressed  by Freund.
Although the Board is certainly correct that a  union may file an
unfair labor practice charge against an  employer during the critical
period before an election, the 


purpose of such a charge is to prevent an employer's unfair  labor
practice from inhibiting employees in the exercise of  their right
freely to vote for or against union representation.  The ensuing
litigation is not the cause of the problem; it is  the cure. GAF
Corp., which the Board itself cites in this  regard, is a good
example. There the employer had canceled  a planned pay increase when
the union began its campaign to  organize the employees. See 488 F.2d
at 307-08. The union  filed an unfair labor practice charge and the
Board (which  was later upheld by the court of appeals) ordered the
employ- er to restore the status quo ante by granting the planned pay 
increase. See id. at 308-09. The Union had to initiate  litigation in
order to prevent the employer from "plac[ing] the  onus on the Union
for the loss of the increase" and thereby  interfering with the
employees' electoral choice. Id. at 309.  Litigation necessary to
protect the electoral process, however,  cannot be equated with
litigation intended improperly to  influence the voters.


The same point answers the Union's argument that the  service it
rendered by filing the suit is no different from other  legal services
unions are unquestionably allowed to provide to  employees in the
critical period before an election, such as  "present[ing] a case in
support of the petitioned for bargain- ing unit and ... respond[ing]
to the employer's objections to  the election results." Like a charge
that an employer is  conducting an unlawful campaign against union
representa- tion, such issues often have to be resolved before a valid
 election can take place: If the bargaining unit is not defined 
correctly, for instance, some employees may be improperly 
(dis)enfranchised. Unlike an unfair labor practice charge,  however,
the lawsuits at issue here and in the Nestle case  were not integral
to the conduct of a fair election.


Nor is there weight to the Board's argument that the  Union's lawsuit
is unobjectionable because suing an employer  is at the "core" of the
activity protected by the Act. No party  to this case has expressed
any doubt that a union may,  pursuant to s 7, file a lawsuit in its
representative capacity.  Cf. Eastex, Inc. v. NLRB, 437 U.S. 556,
565-66 (1978) ("[I]t  has been held [by the lower courts and by the
Board] that the 


'mutual aid or protection' clause protects employees from  retaliation
by their employers when they seek to improve  working conditions
through resort to administrative and judi- cial forums"). The issue
here is whether the Union improper- ly influenced the impending
election by gratuitously bringing  such a suit on behalf of employees
it did not yet represent.


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. For
example, although an employer may in  ordinary circumstances increase
its employees' pay at will, it  may not grant a previously unscheduled
raise during the  critical period prior to an election. See St.
Francis Fed'n of  Nurses and Health Professionals, 729 F.2d at 850-51.
Simi- larly, while the s 7 right of employees to "engage in ... 
concerted activities for the purpose of ... mutual aid or  protection"
would appear to cover a union's provision of  medical and insurance
services even to non-member employ- ees, see Harvest Communications,
Inc., 321 N.L.R.B. 40, 42  (1996), as we have seen, the Board has
nevertheless held that  a union may not give such services to voters
during the  critical pre-election period. See Mailing Servs., 293
N.L.R.B.  at 565-66; Wagner, 167 N.L.R.B. at 533. It does not follow, 
therefore, that because a union ordinarily has the right under  s 7 to
sue an employer, it must have the right to do so in any  and all
circumstances. Because the Board's undifferentiated  view of a union's
right to sue on behalf of non-member  employees ignores the employees'
and the employer's coun- tervailing interest in a free and fair
representation election-- an interest the Board has zealously
protected in analogous  situations--its decision cannot be upheld


3.The First Amendment


Though it stops short of arguing that the Constitution  forbids it from
limiting in any way a union's ability to file a  pre-election lawsuit
on behalf of non-member employees, the  Board does suggest that
overturning the election in this case  would have first amendment
"implications," to which it must  be sensitive. See Bill Johnson's
Restaurants, Inc. v. NLRB, 


461 U.S. 731, 741 (1983). In support of this argument, the  Board
points to NAACP v. Button, 371 U.S. 415 (1963), in  which the Supreme
Court held unconstitutional a state anti- solicitation law that would
have severely limited the ability of  the NAACP to help potential
litigants, including persons  unaffiliated with the organization, file
school desegregation  lawsuits. See id. at 420, 428-29.


We shall assume arguendo that the Union had a first  amendment interest
in filing the suit against the Company-- although the Union itself
does not assert such an interest in  this case. As Freund points out,
the Board again, as it did in  its s 7 argument, fails utterly to come
to grips with the  proposition that, because of the need for an
atmosphere  amenable to rational decisionmaking, the parties to a
repre- sentation election do not retain their full panoply of rights 
during the critical period. For instance, an employer unques- tionably
has a right, protected by the first amendment, to  express
inflammatory views on social issues, such as race  relations. When it
expresses those views shortly before a  representation election,
however, the Board may conclude  that this otherwise protected
activity impermissibly inter- fered with the employees' right to a
free and fair vote. See  Sewell Mfg. Co., 138 N.L.R.B. 66, 69-72
(1962); see also  NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969)
("Any  assessment of the precise scope of employer expression ... 
must be made in the context of its labor relations setting.  Thus, an
employer's rights cannot outweigh the equal rights  of the employees
to associate freely, as those rights are  embodied in [the Act]"). So,
too, a union organizer, who  ordinarily has a constitutional right to
speak to employees  regarding the benefits of unionization, see Thomas
v. Collins,  323 U.S. 516, 532 (1945), may not engage in a prolonged 
discussion with a voter in the polling area. See Milchem,  Inc., 170


Without disavowing its earlier decisions that limit much  expressive
activity in the period prior to a representation  election, the Board
here argues that one form of such activi- ty--the filing of a
pre-election lawsuit by a union on behalf of  non-member
employees--cannot be compromised even where 


the effect is to confer upon voters an otherwise unlawful  gratuity.
This selective reasoning is, to say the least, not  persuasive.


III. Conclusion


The Union's sponsorship of the employees' lawsuit against  the Company
clearly violated the rule against providing gra- tuities to voters in
the critical period before a representation  election. We conclude
that the Board's justifications for  making an exception to the
anti-gratuity rule for a union's  provision of legal services is not
based upon any reasonably  defensible interpretation of the Act.
Therefore, we hold the  Board erred when it denied Freund's petition
to set the  election aside. Accordingly, Freund's petition for review
is  granted and the Board's application for enforcement of its  order


So ordered.