Citations
- 447 F.2d 1136
Full opinion text
O’SULLIVAN, Senior Circuit Judge:
Tyler Pipe Industries of Swan, Texas, seeks vacation, and respondent National Labor Relations Board asks enforcement, of a Supplemental Order and Decision of the Board, issued January 23, 1970. This Order, reported at 180 NLRB No. 136, required Tyler Pipe to recognize and bargain with the International Molders and Allied Workers Union, AFL-CIO. The controlling issue was whether a representation election, held on August 5, 1965, and which was won by the Union 902 to 758, should have been set aside because of improper pre-election conduct by the Union. The Regional Director, overruling Company objections, certified the Union as the bargaining representative of production employees of Tyler Pipe. Upon the Company’s refusal to bargain with the certified Union, it was charged with an unfair labor practice.
The unfair labor charge was first disposed of by a trial examiner granting the Board’s motion for judgment on the pleadings and upon the record made in the Regional Director’s consideration of the Company’s request that the election be set aside. The Board adopted the trial examiner’s findings and ordered the Company to recognize and bargain with the Union.
In Tyler Pipe & Foundry Co. v. N. L. R. B., 406 F.2d 1272 (5th Cir. 1969), this Court denied enforcement of the Board’s order and remanded the cause “for a full hearing on the validity of the representation election.” 406 F.2d at 1275. After a plenary hearing upon our remand, the Board and its trial examiner, Fannie M. Boyls, concluded that the proofs taken pursuant to our remand and a reconsideration of its earlier procedures did not call for a different result than its previous order. The resulting order entered January 23, 1970, is the subject of this appeal.
We deny enforcement.
In this Court’s earlier decision, we recited some of the false statements made and pre-election tactics employed by the Union organizers. The Board conceded the Union’s falsehoods. In our opinion we said:
“The Board, in defense of its position, asserts that the Company, in certain instances, could have rebutted and offset the many false allegations. In those other instances where the Company had no opportunity to reply, the Board determined, albeit without a hearing, that the employees either were not, or could not have been affected by the Union’s spurious methods. We cannot accept the Board’s complacency.” 406 F.2d at 1274, 1275. (Emphasis supplied.)
We further said:
“Under the election conditions that existed in this case, the Board should conduct a full hearing to determine the effect of the Union’s methods on the vote of the employees. In so doing, the Board should determine whether there was a deliberate use of false propaganda for, when ‘the standards of election campaigning drop too low, the requisite laboratory conditions are not present, and the [election] must be conducted over again.’ N. L. R. B. v. Houston Chronicle Publishing Co., [5 Cir.] 300 F.2d [273] at 278.” 406 F.2d at 1275. (Emphasis supplied.)
We set out below the admittedly false statements by the Union’s agents, the trial examiner’s characterization of them, and her reason for finding that neither separately nor collectively did they impair the validity of the Union’s election victory. These false statements, admittedly made by the Union agents, and other pre-election conduct persuade us now to conclude that:
“the standards of election campaigning [did] drop too low [with the consequence that] the requisite laboratory conditions are not present, and [the election] must be conducted over again.” N. L. R. B. v. Houston Chronicle Pub. Co., 300 F.2d at 278 (5th Cir. 1962).
Early in the campaign, union organizers — not employees of the company — began to urge in speeches and otherwise that the United States Government was behind the Union and desired unionization of all workers. A handbill distributed at the plant gates during the two days immediately before the election illustrates such campaigning. This was its style:
“You will WIN YOUR ELECTION * * * because responsible people in all walks of life have repeatedly SUPPORTED THE RIGHT OF WORKING MEN TO ORGANIZE. President Kennedy, President Johnson, President Eisenhower, President Truman and others * * * Church Leaders of ALL FAITHS urge employees to organize * * * and the United States Government STRONGLY URGES employees to organize, and GUARANTEES you the RIGHT and PROTECTION. Only a few days ago, the United States Congress, in taking the first step to REPEAL Section 14B of the current Labor-Management Law, strongly supported the right of employees to have GOOD UNION ORGANIZATION.
“Although Presidents, Church Leaders and the United States Congress and Government urges Organization among employees. * * * The Board of Directors of Tyler Pipe and Foundry Company * * * because of their desire to GET RICHER at the expense and misery of their employees * * * would FOREVER DENY YOU the DIGNITY and RESPECT of organization * * * “THEY WILL NOT GET AWAY WITH IT THIS TIME * * * You will WIN YOUR ELECTION, and will win by a large majority.”
While this union conduct was not literally violative of the Board’s rule announced in Peerless Plywood Co., 107 NLRB 427 (1953), it offended its spirit. This is the rule:
“Accordingly, we now establish an election rule which will be applied in all election eases. This rule shall be that employers and unions alike will be prohibited from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election. Violation of this rule will cause the election to be set aside whenever valid objections are filed.” 107 NLRB at 429.
Of this style of campaigning, the trial examiner said:
“* * * the Union never identified any church leaders as urging employees to organize and no basis appears for the Union’s sweeping statement regarding church leaders.”
However, as was her practice as to most all misstatements by the Union, she excused this misrepresentation as follows:
“Employees, however, would be in as good a position as the Union to appraise the truth of such a claim and I believe they would readily recognize it as organizational puffing and propaganda.”
As to the Union’s claim that the government was back of union organization, the examiner said:
“What troubles me more is the statement that the United States Government strongly urges employees to organize. * * * The fact that the Act may have as a purpose the encouragement of collective bargaining to eliminate or diminish the causes of industrial strife or unrest which interfere with the free flow of commerce, and may guarantee and protect the right of employees to organize, clearly does not warrant an inference that the United States Government urges employees to organize. Section 7 of the Act, as Union Representative Boyd surely knew, guarantees the right of employees to refrain from joining as well as their right to join labor organizations. These false and irresponsible characterizations of the position of the United States Government are inexcusable and should be strongly condemned.” (Emphasis supplied.)
Notwithstanding such condemnation, the examiner did not consider it as any impairment of the Union’s victory. She observed:
“Nevertheless, the fact that the statements were untrue and apparently deliberately made for the purpose of influencing the employees’ votes, does not mean that they did in fact have that effect.” (Emphasis supplied.)
She then cited Anchor Mfg. Co. v. N. L. R. B., 300 F.2d 301, 303 (5th Cir. 1962), and N. L. R. B. v. Bata Shoe Co., 377 F.2d 821, 829 (4th Cir. 1967) as sustaining her. Respectfully, we do not find that either of these cases, as claimed by the examiner, sustained an election where “the union had told employees that union contracts had the backing of the United States Government and the sooner they signed a union card, the sooner the Union and the United States Government could go to work.” The examiner then refused to find the pamphlet destructive of the election’s validity.
“I, too, while disturbed over the Union’s use of such reckless and unfounded characterization of the Government’s position with respect to employees organizing, am unable to conclude, on the basis of the leaflet alone, that the employees would believe or be influenced in their voting by such union tactics. A careful examination of the record discloses not a scintilla of evidence that any employee’s vote was influenced by that circular.” (Emphasis supplied.)
During three days preceding the August 5th election, the union organizers by radio broadcasts, told the company’s employees that its owners and officers were getting wealthy by callous exploitation of its wage earners. Such broadcasts included the following:
“So, it appears that Mr. Warner, along with the Board of Directors of Tyler Pipe and Foundry Company are playing a cruel little game with the lives and futures of some 2000 people of Tyler Pipe. They are seeing just how long they can keep you afraid, apart and unorganized. They are playing games with your future, the future of your wife and children. They don’t want another chance to beat the Union, they want another chance to beat you, to oppress you and to keep you down. They want to beat you, the very people that made them wealthy. They want to continue to enjoy their puppet show every year, a show in which they sit up there in their leather chairs, pull the strings of hate and fear, and watch the results as you, the hardworking men, stay unorganized for another year. Now, fellows, listen to me. Let’s stop this thing right now. Let’s get together. Let’s provide those things you want for yourself and for the little lady of the house and for those kiddos who you wouldn’t take a million dollars. Let’s unite. Let’s go down to those voting places Thursday and tell the world that east Texas is ready to move to the top. Let’s tell the Board of Directors at Tyler Pipe and Foundry Company that we’ve had enough of their deception.” (Emphasis supplied.)
Mr. Charles Boyd, organizer for the International Molders and Allied Workers was then introduced with these words:
“To give you a brief idea of the financial status of Tyler Pipe and Foundry, we have Mr. Charles Boyd of the International Molders and Allied Workers Union, AFL-CIO, with us today. Mr. Boyd had made careful examination of the Company’s sales and profits over the past four years and has statements for us concerning this matter. Mr. Charles Boyd.”
Responding, Mr. Boyd said:
“I would like to discuss with the Tyler Pipe and Foundry employees some important facts, facts that I don’t think they will ever see posted on the Company bulletin board. * * * First, let me say that the figures that I’m about to quote are not just imaginary figures, but figures of fact coming out of the Company office. Now sales for the year of 1961 amounted to $17,348,396. Sales for the year 1962 amounted to $20,061,618, an increase of nearly $3,000,000. Sales for. the year 1963 amounted to $24,370,303, an increase of over $4,000,000. Sales for the year 1964 amounted to $29,-236,592, an increase of $5,000,000. Now this means that within a four-year period sales by Tyler Pipe and Foundry increased nearly $12,000,000. This is astounding but these are the facts and the Company will not deny them. What does this mean to the Company’s Board of directors and stockholders. This means that these gentlemen and the principal stockholders, while in 1960 received 71