National Labor Relations Board v. Erie Brush and Manufacturing Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1503
N ATIONAL L ABOR R ELATIONS B OARD ,
Petitioner,
v.
E RIE B RUSH AND M ANUFACTURING
C ORPORATION ,
Respondent.
____________
On Application for Enforcement of an Order
of the National Labor Relations Board
No. 13-CA-41318
____________
A RGUED S EPTEMBER 30, 2004—D ECIDED M AY 2, 2005
____________
Before R OVNER , W OOD and S YKES , Circuit Judges.
ROVNER, Circuit Judge. The employees of Erie Brush and
Manufacturing Corporation (“Erie Brush”) voted to accept
the Service Employees International Union, Local 1, AFL-
CIO (the “Union”) as their exclusive collective-bargaining
representative. Erie Brush filed three objections to the
election. The NLRB held a hearing on the objections and
the Hearing Officer recommended that each objection be
overruled. A three-member panel of the NLRB agreed with
the Hearing Officer’s assessment and certified the Union as

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2 No. 04-1503
1 The “appropriate unit,” as stipulated by the parties was all full
time and regular part-time production and maintenance employ-
ees employed by Erie Brush at its facility currently located at 860
W. Fletcher Street in Chicago, but excluding all salesmen, office
clerical employees and guards, professional employees and super-
visors.
the exclusive collective-bargaining representative of an
appropriate bargaining unit of Erie Brush’s Fletcher Street
plant in Chicago. 1 Subsequently, Erie Brush refused (and
continues to refuse) to bargain with the Union, claiming the
NLRB’s certification of the Union was improper. The Union
filed an unfair labor practice charge with the NLRB, and a
three-member panel granted judgment in favor of the
Union. The case is now before us on an application of the
NLRB to enforce its December 31, 2003 Decision and Order.
Because the NLRB properly certified the Union and
correctly overruled the employer’s objections to the election,
we enforce the December 31, 2003 Decision and Order.
I.
On December 3, 2002, the Union petitioned the NLRB
(the “Board”) for certification as the representative of an
appropriate unit of Erie Brush’s production and mainte-
nance employees. The Board then conducted a secret ballot
election on January 14, 2003. Of twenty-seven eligible
voters, eighteen cast ballots for the Union, five cast votes
against the Union and two ballots were challenged. A week
later, Erie Brush filed three timely objections to the elec-
tion. The first objection alleged that the Union threatened
violence against any company employee who attempted to
work during a strike against Erie Brush. According to the
second objection, the Union threatened to charge a $250
initiation fee to those employees who voted against the
Union in the election but not to those who voted for the

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No. 04-1503 3
Union. The third objection asserted that the conduct of pro-
Union employees created an atmosphere of fear and
coercion that made a fair election impossible.
Because the objections raised substantial and material
issues of fact, the Board conducted a hearing on February 13
and 14, 2003. Most of the witnesses were Spanish-speaking
employees of Erie Brush, and they testified through an
interpreter. The hearing officer was also fluent in Spanish,
stating on the record that her Spanish was even better than
her English. Tr. at 16. After hearing the testimony of nine
witnesses, the hearing officer issued a Report on Objections,
recommending that each of the employer’s objections be
overruled.
In support of the first objection, Erie Brush alleged that
Union representative Oscar Sandoval told employees during
a January 11, 2003 meeting that if there was a strike, the
employees would surround the building and block the
entrances. According to Erie Brush, Sandoval told the em-
ployees that workers who tried to enter the plant during a
strike would have their car windshields broken and their
tires slashed, and that if they still tried to enter, they would
be taken for a ride and beaten. Erie Brush presented the
testimony of Sergio Barraza, Javier Tapia and Luis Rodriguez
Soto, three employees who were present at the January 11
meeting, in support of this charge. The Union countered with
three other employees present at the meeting, Clemente
Isidro, Carlos Santana and Sergio Moreno, as well as Union
representative Sandoval. The hearing officer found that
Barraza, Tapia and Rodriguez Soto were not credible in their
accounts of the January 11 meeting. To the extent that
their stories conflicted with the testimony of the Union’s wit-
nesses, she credited the version of events told by the Union’s
witnesses. She based her credibility finding for Barraza on
changes in demeanor between direct and cross-examination,
confrontational and impatient responses, reluctance to
answer questions, outright evasiveness, facial expressions and

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4 No. 04-1503
body language. She noted similar problems with Tapia’s
testimony, finding that his demeanor changed substantially
from direct to cross-examination, when he suddenly strug-
gled to understand questions and appeared irritated,
uncooperative and unresponsive. The hearing officer
observed that, on cross, Tapia seemed to be answering
questions other than those asked so that he could make a
particular point. In the case of Rodriquez Soto, the hearing
officer found that he was reluctant to answer questions on
both direct and cross-examination, that the few answers he
gave were evasive or inconsistent with a prior affidavit, and
that he admitted he was motivated to testify because he
wanted to protect his job. The hearing officer instead
credited the testimony of Sandoval and Santana, who both
responded to direct and cross-examination in a thoughtful,
calm and straightforward manner. Sandoval denied that he
ever told employees to break windshields, slash tires or beat
persons who tried to cross a picket line. Santana corrobo-
rated Sandoval’s testimony, and because the hearing officer
credited that testimony, she recommended that the first
objection be overruled in its entirety.
On the second objection, the employer presented testimony
from Margarita Salgado and Miroslava Onofre in addition
to Barraza, Tapia and Rodriguez Soto. The hearing officer
again found Barraza and Tapia not credible. She noted that
Salgado testified with a great deal of prompting and thus
she credited only those parts of the testimony that were not
prompted by the employer’s lawyer. She also credited
Salgado’s testimony to the extent it was corroborated by
other credible witnesses. According to Salgado, Clemente
Isidro called her numerous times to discuss the Union. He
gave her a paper on which to write her name and social
security number and told her that it was for the Union to
know that she was with them. On another day, Isidro told
her that those employees who voted against the Union
would have to pay an initiation fee. Isidro also asked

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No. 04-1503 5
Salgado to tell other female employees that workers who
did not vote for the Union would have to pay an initiation
fee. On the day of the election, Salgado told Onofre that she
should vote for the Union to avoid paying the initiation fee.
Salgado then told Isidro that Onofre was with the Union.
Isidro called Salgado on her cell phone later that day when
she was with Onofre. According to Salgado, both she and
Onofre had their ears to the phone when Isidro repeated
that he would let the Union know they were with the Union
so that they did not have to pay an initiation fee. Salgado
admitted on cross-examination that she never signed a
Union card and that she never heard any other employees
talk about an initiation fee. Onofre corroborated Salgado’s
testimony. She testified that Salgado told her on the day of
the election that if she did not vote for the Union, they would
charge her an entry fee. She also testified that she listened
in on the telephone conversation between Salgado and
Isidro on the day of the election, when Isidro told Salgado
that he would tell the Union to put the women’s names on a
list so that they would not be charged an entry fee.
Erie Brush tried to establish that Isidro was an agent of
the Union when he engaged in this pro-Union conduct. The
hearing officer considered Isidro’s actions on behalf of the
Union to determine whether he generally could be consid-
ered an agent for all purposes or whether he was a “special
agent” for certain limited purposes. The hearing officer
found that Isidro made the first contact with the Union in
November 2002 and arranged for the first Union meeting.
The evidence revealed Isidro to be an active and vocal
supporter of the Union who solicited Union cards, called
employees at home to encourage them to join the Union,
and talked to employees at the plant about joining the
Union. Isidro obtained signatures on Union cards from four
employees. Moreover, Sandoval relied in part on Isidro to
inform him about what was going on at the plant. Isidro
invited the employees to the first Union meeting but after

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6 No. 04-1503
that, Sandoval called employees at home to invite them to
additional meetings. Only Sandoval spoke at Union meet-
ings and the Union did not confer on Isidro any authority to
act on behalf of the Union. Finally, the hearing officer found
that there was no evidence that Isidro’s comments about
initiation fees occurred in the context of soliciting Union
cards or that he solicited Union cards from either Salgado
or Onofre. Consequently, the hearing officer found that
Isidro was neither an agent nor a special agent of the
Union. The hearing officer thus evaluated Isidro’s conversa-
tions about initiation fees as third party misconduct. She
found that there was no evidence that Isidro’s conduct
extended beyond the two women who testified. The Union
had clarified in a prior well-attended meeting that no one
would be charged an entry fee whether or not they voted for
the Union. The hearing officer therefore found that Isidro’s
conduct was insufficient to justify setting the election aside.
In the alternative, she found that even if Isidro was an
agent of the Union, his conduct was not objectionable
because the election was secret and no reasonable employee
would view a secret vote for the Union as a quid pro quo for
a waiver of initiation fees. The hearing officer thus rec-
ommended that the second objection be overruled in its
entirety.
On the third objection, two witnesses testified that Isidro
threatened them. The hearing officer once again discredited
the testimony of Barraza, who claimed that Isidro called
him names, shoved him and threatened that he would kill
him if he could not trust him. In addition to finding that
Barraza was not credible, the hearing officer noted that
there was no evidence that Isidro’s threats were linked to
any employee’s views on the Union. Roberto Andraca tes-
tified that on the day of the election, Isidro walked down a
narrow passage towards him with a menacing look on his
face. Andraca stepped to the side and Isidro passed without
incident. Isidro later called Andraca a name when he
walked past a table where Isidro was working. The hearing

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No. 04-1503 7
officer found that Isidro’s conduct was not objectionable and
that there was no evidence of a link between Isidro’s alleged
conduct and Andraca’s stance against the Union. She
therefore recommended that the third objection be over-
ruled.
Erie Brush filed exceptions to the hearing officer’s report.
Thereafter, a three-member panel of the NLRB issued its
Decision and Certification of Representative (“Decision”).
The panel overruled all three objections, adopting many of
the hearing officer’s findings and recommendations, but
modifying its rationale for overruling the second and third
objections. For the first objection, the panel overruled the
employer’s objection for the reasons stated in the hearing
officer’s report. On the second objection, however, the panel
found that it was irrelevant whether Isidro was an agent of
the Union and whether his offer to waive initiation fees was
objectionable under Supreme Court precedent because the
record was insufficient to demonstrate that Isidro’s conduct
could have affected the election results. See N.L.R.B. v.
Savair Manufacturing Co., 414 U.S. 270 (1973). In parti-
cular, there was no credited evidence that Isidro discussed
this offer with anyone other than Salgado and Onofre and
no credited evidence that Salgado and Onofre disseminated
those statements to others. Because the Union won the
election by a vote of eighteen in favor, five opposed and two
disputed votes, the statements to Salgado and Onofre could
not have made a difference to the outcome. For that reason,
the panel overruled the second objection. On the third
objection, the panel found that whether or not Isidro was
acting as an agent of the Union when he threatened
Andraca, the record failed to establish that Isidro’s actions
were connected to the election or to Andraca’s stance against
the Union. Accordingly, the panel overruled the third ob-
jection and certified the Union as the exclusive collective-
bargaining representative of the bargaining unit that we
defined above.

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8 No. 04-1503
Erie Brush nonetheless refused to bargain with the Union
after the panel’s decision, and the Union therefore filed an
unfair labor practice charge with the Board, claiming the
company violated 29 U.S.C. §§ 158(a)(5) and (1) by refusing
to bargain with the Union. Erie Brush responded to the
complaint by admitting its refusal to bargain but again
disputing the propriety of the Board’s certification of the
Union. The Board issued a Decision and Order (“Order”)
granting summary judgment in favor of the Union, finding
that Erie Brush’s refusal to bargain violated the statute.
The Board rejected Erie Brush’s continuing contention that
the election was invalid under Savair regardless of whether
Isidro disseminated his promise to waive initiation fees for
those who voted in favor of the Union. The Board again
cited the lack of evidence of dissemination and the wide
margin by which the Union won the election. The Board
thus found that the Union was properly certified, and that
Erie Brush’s refusal to bargain with the Union was unlaw-
ful. The Board ordered Erie Brush: (1) to cease and desist
from refusing to bargain with the Union and from interfer-
ing with employees in the exercise of rights guaranteed
under Section 7 of the National Labor Relations Act; and (2)
to bargain on request with the labor unit at Erie Brush and
to post a notice to employees informing them of their rights.
II.
In light of Erie Brush’s continued refusal to bargain, the
NLRB filed an Application for Enforcement of an Order of
the National Labor Relations Board in this court. Erie Brush
persists in its three objections to the election and certifica-
tion of the Union as the exclusive collective-bargaining
representative at the Erie Brush plant. In particular, Erie
Brush contends that the Board erred: (1) in affirming the
hearing officer’s finding that employees were not threatened
with adverse consequences for crossing a picket line; (2) in

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No. 04-1503 9
concluding that the dissemination of Isidro’s promise to
waive Union initiation fees was insufficient to change the
results of the election; and (3) in finding that Isidro’s
menacing conduct toward Andraca was not sufficiently
shown to be related to Andraca’s stance against the Union
to affect freedom of choice in the election.
A.
We will address the first and third objections together
because both are largely matters of credibility. Our review
of the Board’s decision to certify a collective bargaining
agent following an election is extremely limited. N.L.R.B. v.
Chicago Tribune Co., 943 F.2d 791, 794 (7th Cir. 1991), cert.
denied, 504 U.S. 955 (1992). See also Overnite Transp. Co.
v. N.L.R.B., 104 F.3d 109, 112 (7th Cir. 1997) (review of the
Board’s determination is deferential). A Board-run repre-
sentation election is presumptively valid. Overnite Transp.,
104 F.3d at 112; Tempco Electric Heater Corp. v. N.L.R.B.,
999 F.2d 1109, 1111 (7th Cir. 1993); N.L.R.B. v. WFMT, 997
F.2d 269, 274 (7th Cir. 1993). The party challenging the
election as the formidable burden of demonstrating that the
election is invalid, and that substantial evidence does not
support the Board’s decision. WFMT, 997 F.2d at 274;
Chicago Tribune, 943 F.2d at 794. To meet this burden when
the unlawful conduct is committed by union agents, the
objecting party must show that unlawful acts occurred and
that those acts interfered with the employees’ exercise of
free choice to such an extent that they materially affected
the results of the election. Overnite Transp., 104 F.3d at
113; WFMT, 997 F.2d at 974; Chicago Tribune, 943 F.3d at
794. When the objectionable conduct is the act of rank-and-
file employees rather than union agents, the Board will
overturn an election only if the conduct created such an
atmosphere of fear and reprisal that the rational, uncoerced
selection of a bargaining representative was rendered

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10 No. 04-1503
impossible. Overnite Transp., 104 F.3d at 113. We are
obligated to affirm the NLRB’s findings of fact and applica-
tions of law to fact if they are supported by substantial
evidence on the record considered as a whole. Uniroyal
Technology Corp., Royalite Division v. N.L.R.B., 98 F.3d
993, 997-98 (7th Cir. 1996). Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support the Board’s conclusion. Uniroyal, 98
F.3d at 998. Congress intended to confer upon the Board
broad authority to develop national labor policy and so we
will uphold the Board’s legal conclusions so long as they
have a reasonable basis in the law. Uniroyal, 98 F.3d at
998.
For the first objection, Erie Brush alleged that the Union
itself, through Sandoval, had threatened violence against
persons attempting to cross a picket line in the event of a
strike. The hearing officer found that the employer’s wit-
nesses were not credible and that Sandoval delivered no such
threats. A three-member panel of the Board adopted the
hearing officer’s recommendation to overrule this objection.
These credibility determinations are entitled to consider-
able deference and we will overturn them only in extraordi-
nary circumstances. Ryder Rental Truck v. N.L.R.B., 401
F.3d 815, 825 (7th Cir. 2005); Dilling Mechanical
Contractors, Inc. v. N.L.R.B., 107 F.3d 521, 524 (7th Cir.),
cert. denied, 522 U.S. 862 (1997). The employer now argues
that the hearing officer did not fully consider Sandoval’s
own testimony and that this testimony indicates that
Sandoval did convey a threat. Erie Brush relies the fol-
lowing exchange during the company’s cross-examination of
Sandoval:
Q. Did you say to them that you’ve got to make sure
that they don’t go past the picket line? Did you tell
them that?
A. At the time, they’re going to take care over there, I
say if somebody coming, talk to these people and explain

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No. 04-1503 11
to the people why the situation with this company, and
you want the union and this is the reason how this
company is paying to you, you know. And then, these
people are going to be scared and they are going to walk
away.
Tr. at 140. As we noted earlier, all of the employee-wit-
nesses spoke Spanish and testified through an interpreter,
which helps account for some of the stilted language in the
transcript. The hearing officer was a front row observer for
this testimony, giving her a far greater edge in making
credibility determinations than we could ever hope to have
in reviewing the black and white transcript. Erie Brush’s
claim that this exchange conclusively demonstrates that
Sandoval threatened employees with violence is quite a
stretch. We will presume the hearing officer considered all
of the testimony, even if she did not recount it line by line
in her decision. Having heard all of the testimony in context,
the hearing officer determined no threat was conveyed. The
hearing officer’s credibility determinations were well-
founded on assessments of the witnesses’s body language,
demeanor, evasiveness and other factors that we detailed
above. This exchange on cross-examination is not an “extra-
ordinary circumstance” that convinces us otherwise and
thus we find the employer has failed to demonstrate that
substantial evidence does not support the Board’s decision
on the first objection.
Turning to the third objection, the hearing officer found
that Barazza, one of the employer’s witnesses, was not
credible in his claim that Isidro threatened him because he
did not support the Union. The hearing officer credited the
testimony of the other witness presented, Roberto Andraca,
but found that Isidro’s conduct was not objectionable and
that there was no credible evidence linking Isidro’s conduct
to Andraca’s stance against the Union. The Board concluded
that, whether Isidro’s conduct was evaluated as an agent of
the Union or as a rank-and-file employee, it was not

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12 No. 04-1503
objectionable conduct and was not shown to be linked to
Andraca’s stance against the Union. As with the first
objection, we defer to the credibility determinations of the
hearing officer. With no credible evidence linking any of
Isidro’s conduct to Andraca’s anti-Union stance, the Board
was correct to overrule the third objection.
B.
Erie Brush also argued that Isidro violated the Supreme
Court’s dictate in N.L.R.B. v. Savair Manufacturing Co.,
414 U.S. 270 (1973), when he told Salgado and Onofre that
the Union would charge an initiation fee for workers who
voted against the Union. The same standards of review
apply to this second objection as applied to the first and
third objections discussed above. For the same reasons we
stated above, we will credit only those witnesses and only
that testimony that was credited by the hearing officer and
accepted by the Board on this issue. According to the cre-
dited testimony, Isidro called Salgado a number of times to
discuss the Union. He asked her to write her name and so-
cial security number on a piece of paper so that the Union
would know she was with them. Sometime later, he told her
the Union would charge an initiation fee to workers who
voted against the Union, and he asked her to pass this
information on to the other female employees at the plant.
Salgado told exactly one other person, Onofre, on the day of
the election. Neither Salgado nor Onofre told anyone else
about the initiation fee and Salgado expressly stated that
she never heard any other employees discuss an initiation
fee at any time. Although Isidro sought and obtained signed
Union cards from four other employees, he never solicited
Union cards from either Salgado or Onofre and they did not
sign Union cards before the election. The hearing officer
specifically found there was no evidence that Isidro’s
statement about initiation fees was conveyed to anyone

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No. 04-1503 13
other than Salgado and Onofre. Moreover, the Union had
clarified in a meeting prior to Isidro’s statements that the
Union intended to waive initiation fees for all of the
employees whether or not they voted for the Union. Finally,
the hearing officer found that there was no evidence that
Isidro’s comments about initiation fees occurred in the
context of soliciting Union cards from either Salgado or
Onofre. The hearing officer also found that Isidro was
neither an agent nor a special agent of the Union when he
made these statements to Salgado and Onofre, and she
therefore evaluated the conversations as third party mis-
conduct. She found the misconduct did not warrant setting
the election aside, noting that ballots were cast in secret
and that no reasonable person would expect a waiver of fees
in exchange for a secret ballot. The Board took a slightly
different approach, finding that no matter whether or not
Isidro was an agent of the union, his actions were insuffi-
cient to affect the outcome of the election. The Board
therefore overruled the second objection.
In Savair, the union won a representation election by a
vote of twenty-two to twenty. Prior to the election, the union
circulated “recognition slips” (which the Court also refers to
as “authorization cards”) among employees. Employees who
signed the slips before the election became members of the
union. The national secretary-treasurer of the union told
the employees at a meeting that those employees who
signed the slips would not have to pay an initiation fee if
the union was voted in. 414 U.S. at 272-74. The solicitation
of signatures on the slips was done not by union officials
but by rank-and-file employees authorized by the union to
accomplish this task. The union argued that because the
election was held by secret ballot, there was no harm in
making this promise because even employees who signed
the card could vote “no” without fear of having to pay the
fee. The Court rejected this reasoning:

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14 No. 04-1503
Whatever his true intentions, an employee who signs a
recognition slip prior to an election is indicating to
other workers that he supports the union. His outward
manifestation of support must often serve as a useful
campaign tool in the union’s hands to convince other
employees to vote for the union, if only because many
employees respect their co-workers’ views on the union-
ization issue. By permitting the union to offer to waive
an initiation fee for those employees signing a recogni-
tion slip prior to the election, the Board allows the
union to buy endorsements and paint a false portrait of
employee support during its election campaign.
414 U.S. at 277. The Court remarked that this influence
may well have been felt here where twenty-eight employees
signed the slips before the election petition was filed with
the Board and an additional seven or eight signed the slips
before the election. The Court stated that the statutory policy
of fair elections does not permit endorsements, either for or
against the union, to be bought and sold in this manner.
414 U.S. at 277.
In addition, while it is correct that the employee who
signs a recognition slip is not legally bound to vote for
the union and has not promised to do so in any formal
sense, certainly there may be some employees who would
feel obliged to carry through on their stated intention to
support the union. And on the facts of this case, the
change of just one vote would have resulted in a 21-21
election rather than a 22-20 election.
414 U.S. at 277-78. The Court concluded:
If we respect, as we must, the statutory right of employ-
ees to resist efforts to unionize a plant, we cannot
assume that unions exercising powers are wholly
benign towards their antagonists whether they be non-
union protagonists or the employer. The failure to sign
a recognition slip may well seem ominous to nonunion-

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No. 04-1503 15
ists who fear that if they do not sign they will face a
wrathful union regime, should the union win. That
influence may well have had a decisive impact in this
case where a change of one vote would have changed
the result.
414 U.S. at 280-81. Thus, the Court identified two potential
ill effects from an offer to waive initiation fees in exchange
for signing a union membership card before an election.
First, the waiver allowed the union to purchase endorse-
ments that could serve as a useful campaign tool for the
union. Second, employees who signed recognition slips might
feel obliged to carry through on their promise to support the
union, even in a secret election.
Erie Brush urges us to find that under Savair, Isidro’s
offer to Salgado and Onofre to waive an initiation fee in
exchange for their votes rendered the election invalid. The
Board notes that the Union’s official, well-publicized posi-
tion was a waiver of fees for everyone and that the record
contains no evidence that Isidro’s offer was disseminated to
anyone beyond these two employees. Thus it could not have
affected the outcome of the election, which the Union won
by a vote of eighteen to five. Erie Brush contends that there
is no requirement that the employer prove dissemination,
and that the true evil here was not the purchase of these
two votes but the Union’s purchase of these workers’
endorsements to create a false sense of support for the
Union among other employees.
There are several factors that distinguish the instant case
from Savair and we begin with the second rationale of
Savair to illustrate the differences. Although Isidro asked
the women to write down their names and social security
numbers for the Union, neither worker signed a Union au-
thorization card or recognition slip. Thus, neither woman
joined the Union prior to the election and neither made an
outward manifestation of support for the Union (except to

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16 No. 04-1503
the extent that Salgado’s conversation with Onofre could be
considered a manifestation of support for the Union).
Without an outward manifestation of support for the Union
by these women, Isidro would have been unable to use their
so-called endorsements to paint a false picture of support
for the Union in order to influence other workers. To the
extent he could have used their informal endorsement (if we
consider their private statements to Isidro that they would
vote for the Union to be an informal endorsement) to
influence other workers to vote for the Union, the record
demonstrates that discussion of Salgado and Onofre’s
promise never extended past these two workers according
to the employer’s own witnesses. The record is devoid of any
evidence that Isidro or anyone at the Union used Salgado or
Onofre’s “endorsement” to create a false impression of em-
ployee support or to gather further support for the Union.
Thus, on this record, the evil of purchasing endorsements
discussed in Savair never came to pass.
This is consistent with our holding in the WFMT case,
where a group of employees created a fund to cover the in-
itiation fees for employees who could not afford to pay them.
We found that, unlike the union’s offer in Savair, the
employee-organizers’ offer to waive initiation fees was not
a condition of an employee’s joining the union before the
election. WFMT, 997 F.2d at 277. Rather, because the fund
was available for all employees in the bargaining unit, the
offer to waive initiation fees did not rise to the level of un-
justly allowing the union to buy endorsements and paint a
false picture of employee support during the election
campaign. Id. Here, too, there is no evidence that Isidro’s
offer to these two employees rose to the level of unjustly
allowing the Union to buy endorsements and paint a false
picture of Union support.
Erie Brush complains that it should not be required to
prove dissemination, that under Savair, once an endorse-
ment has been purchased, the evil effect is presumed. As we

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No. 04-1503 17
discussed, neither affected employee formally or informally
endorsed the Union. And this is not a case where the
employer was required to prove dissemination. Rather this
is a case where the employer’s own witnesses testified that
they were the only two people aware of this promise,
supporting the inverse of the inference found in Savair.
There is literally no credible evidence that Isidro or anyone
from the Union attempted to parlay Salgado or Onofre’s in-
formal promise to vote for the Union into additional votes
for the Union. Indeed, Onofre learned of the fee waiver on
the day of the election, when her “endorsement” would have
done the Union little good. The second rationale of Savair
was premised on the ability of the Union to use an “outward
manifestation of support” as a “useful campaign tool.”
Savair, 414 U.S. at 277. The record shows no more than a
few private conversations where two workers agreed to vote
for the Union in exchange for a fee waiver that they would
have received in any case. There were no outward manifes-
tations of support that Isidro or the Union could use or did
use as campaign tools. Hence, the Board’s finding that the
rule of Savair was not violated was supported by substantial
evidence. See also N.L.R.B. v. River City Elevator Co., Inc.,
289 F.3d 1029, 1032-33 (7th Cir. 2002) (the Court in Savair
did not categorically prohibit unions from waiving initiation
fees; rather such a waiver is permissible in an election
campaign when it is available to all employees and is not
conditioned upon pre-election support for the union).
We turn to the first rationale in Savair, that employees
who promised to vote for the Union would feel obliged to
carry through on that promise even in a secret election.
That was certainly the case with Salgado and Onofre but
contrary to Savair, this was not a close election where the
shift of affected votes could have changed the outcome.
Although Erie Brush maintains that the margin of victory
was irrelevant to the Supreme Court’s holding in Savair, a
careful reading of the case demonstrates to the contrary

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18 No. 04-1503
that the Court relied in part on the fact that only one vote
would have shifted the result of the election. This reliance
is consistent with the general rule that, even when the union
itself engages in prohibited conduct, the courts typically
look to the effect on the bottom line of the election in
determining whether to uphold the results of the election.
Overnite Transp., 104 F.3d at 113; WFMT, 997 F.2d at 274;
Chicago Tribune, 943 F.3d at 794 (when the unlawful con-
duct is committed by union agents, the objecting party must
show that unlawful acts occurred and that those acts
interfered with the employees’ exercise of free choice to such
an extent that they materially affected the results of the
election). Even if we determine that Isidro was an agent of
the Union and was engaged in unlawful conduct when he
promised to waive initiation fees for those agreeing to vote
for the Union, Erie Brush has not shown that the unlawful
conduct materially affected the results of the election. Erie
Brush’s own witnesses testified that only two workers were
influenced by Isidro’s conduct. Recall that our review is
limited and deferential to the Board, and that a Board-run
representation election is presumptively valid. Overnite
Transp., 104 F.3d at 112; Tempco, 999 F.2d at 1111; WFMT,
997 F.2d at 274. See also Overnite Transp., 104 F.3d at 112
(we are obligated to affirm the NLRB’s findings of fact and
its applications of law to fact if they are supported by
substantial evidence on the record considered as a whole);
Uniroyal, 98 F.3d at 997-98 (court must uphold NLRB’s legal
conclusions if they have a reasonable basis in the law). The
employer has simply failed to provide sufficient credible
evidence to overcome that presumption. Accordingly, the
December 31, 2003 Decision and Order is hereby enforced.
O RDER E NFORCED .

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No. 04-1503 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-2-05

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