390 F.2d 375 (4th Cir. 1968), 10754, Schneider Mills, Inc. v. N. L. R. B.

Docket Nº:10754.
Citation:390 F.2d 375
Party Name:SCHNEIDER MILLS, INC. and Jimmy and Josh, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:January 08, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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390 F.2d 375 (4th Cir. 1968)

SCHNEIDER MILLS, INC. and Jimmy and Josh, Inc., Petitioner,



No. 10754.

United States Court of Appeals, Fourth Circuit.

January 8, 1968

Argued Oct. 3, 1967.

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Arthur McM. Erwin, Spartanburg, S.C., for petitioner.

Allison M. Brown, Jr., Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., on the brief) for respondent.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER, CRAVEN and BUTZNER, Circuit Judges. [*]

WINTER, Circuit Judge:

Schneider Mills, Inc. and Jimmy and Josh, Inc. (collectively called the 'company'), which carry on a unitary business of manufacturing textiles and textile products, with principal offices and places of business at Taylorsville, North Carolina, petition to set aside the findings of the Board that the company violated §§ 8(a)(5) and 8(a)(1) of the Act by its conceded refusal to bargain with the Textile Workers Union of America, AFL-CIO (the 'union '). 1 The petition, and resistance to enforcement of the Board's order directing bargaining, are predicated upon the contention that the union was not certified as the representative of the company's production and maintenance employees pursuant to a valid representation election. We agree that the election was not valid, because of the union's improper election propaganda. We set aside the finding and refuse enforcement of the order.

The election, pursuant to which the union was certified, was held November 5, 1965, under the direction of the Regional Director for the Eleventh Regional Office of the Board. At the election, a majority of the employees voted in favor of representation by the union. 2 The company filed timely objections to the election, but the Regional Director, after investigation, concluded that the objections of the company were without merit and certified the union. When the company refused to bargain with the union, it was charged with an unfair labor practice, violative of §§ 8(a)(5) and 8(a)(1). At the hearing on the unfair labor practice charges, the company proffered what it intended to prove, but the trial examiner refused receipt of the formal proof and granted general counsel's motion for judgment on the pleadings, stating that no factual matters requiring the taking of testimony or receipt of other evidence were raised by the company. The Board adopted the trial examiner's decision without modification.

Specifically, the company's challenge to the validity of the representation election is predicated upon three union handbills, two of which were circulated on October 21 and November 2, respectively, and the third on the eve and day of the election, and upon the union-sponsored radio broadcasts on the eve of election which were repeated throughout the day of election. Our conclusion that the

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union's propaganda invalidated the election rests on the third handbill and the radio broadcasts; hence, we find it unnecessary to consider fully the other handbills.

In language undeniably offensive, the handbill of November 4-5 sought to impugn the character and motives of Mr. Schneider, the president of the company, in resisting unionization. The challenged portion of the handbill reads as follows:

'We have been told that he (Schneider) made the remark that he wished he could tie two of the women employees, who are active in the Union, to their machines and set them on fire and watch them burn to death. A person who talks like this is bound to be mentally disturbed and dangerous to be around. This type of filth is what a half million American boys gave their lives to prevent in World War II-- to keep another mad man by the name of Hitler from destroying the world.'

On the record before us, we must treat the alleged statement of Mr. Schneider as never made. At the unfair labor practice hearing, the company proffered to prove that Mr. Schneider did not make such a statement. It is true that the Regional Director in concluding to issue a Certificate of Representative noted that evidence was offered during the course of the investigation conducted by him which tended to show that a similar remark was in fact made by Mr. Schneider, and that representatives of the union were informed of it. The Regional Director found it unnecessary to determine whether or not such a statement was actually made, in view of his conclusion that name-calling and insulting or derogatory statements by one party about another during an election do not warrant setting aside the results of the election. The evidence to which he referred is not included in the record before us. Absent such evidence and in the light of the company's rejected proffer of proof to the contrary, we assume the facts of the matter in the light most favorable to the company and decide the question raised by the handbill on the basis that Mr. Schneider did not make such a statement.

The radio broadcasts undertook falsely to assert benefits purportedly gained as a result of a union-led strike by employees at the Collins & Aikman plant in Albemarle, North Carolina, some seventy miles from Taylorsville. Some of the assertions in the broadcasts were being made for the first time, but some of them were repetitious of what had been earlier claimed in the handbill of November 2. The Regional Director found that the November 2 handbill was distributed at a time when the company was able to controvert the false statements contained therein and that, in fact, they had been controverted by the company in a campaign flyer, entitled 'FACT SHEET,' on November 4, one day before the election. The statements contained in the radio broadcasts, their accuracy, and whether they had been previously asserted in the November 2 handbill, are as follows:

1. 'Allowance of 15 minutes paid lunch period, 5 minutes for 'wash-up and clean-up' time.'

'Allowance for no less than 15% 'rest time' for workers on all job assignments in the plant.'

From these statements, broadcast seriatim, a listener would understand that the benefits described were being stated conjunctively. The Regional Director found that the paid lunch period was a part of the fatigue and personal time, so that the representation that two nonduplicating benefits had been obtained by the union was false. This part of the statements was in the handbill and was repeated in the broadcast. New in the broadcast was the representation that an additional 5 minutes was allowed for 'wash-up' and 'clean-up' time. In the light of the Regional Director's finding this representation was also false.

2. 'Overtime * * * for the sixth day work and double time for Sunday work.'

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The Regional Director found that the Collins & Aikman contract did provide for double time for Sunday work, but only when Sunday was the seventh consecutive day worked. The statement is substantially a repetition of the misrepresentation contained in the November 2 handbill.

3. 'Premiums on Insurance Benefits for employees will be paid by the company and provides * * * Hospital, Health and Surgical coverage, plus Sick Leave pay of $15.00 per week.'

The Regional Director found that the provision for sick leave pay was applicable only after the seventh consecutive day of illness. This misrepresentation was a repetition of that contained in the earlier handbill.

4. 'During the negotiation sessions both parties had agreed to adoption of the general wage increase ranging from 5 cents to 7 cents an hour, plus 8 weeks back wages.'

The Regional Director found that the contract provided for a wage increase of from 5 to 10 cents per hour but that the increase had been unilaterally granted by the employer in August and the contract made it retroactive to June. This misrepresentation was substantially a restatement of that contained in the handbill.

5. 'The strike was called by the employees and not by the Union. The Union fed, and paid all bills of the workers while they were on strike.'

In the previous handbill the union had claimed that during the strike at the Collins & Aikman plant the union had paid the bills, as distinguished from all bills, of the strikers. In regard to the previous handbill, the Regional Director found that 'Investigation discloses that the Petitioner (union) did in fact spend substantial sums in providing various strike benefits * * *. ' From this finding we infer that the broadcast statement was a misrepresentation, more clearly false its predecessor.

Unquestionably, under the decided cases 'the control of the election proceeding and the determination of the steps necessary to conduct that election fairly were matters that Congress entrusted to the Board alone. ' National Labor Relations Board v. Waterman S.S. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704 (1940). Elsewhere stated, 'Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees. ' National Labor Relations Board v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct; 324, 328, 91 L.Ed. 322 (1946).

The decisions of this Court are fully in accord with the quoted statements of the Supreme Court. We said recently in Overnite Transportation Company v. National Labor Relations Board, 327 F.2d 36, 41 (4 Cir. 1963), 'The key factor in setting aside an election, whether by virtue of the conduct of the parties or of the Board, is the failure of those in the bargaining unit to make their collective desire effective. ' And this statement must be read in the context of our earlier pronouncement that 'Whether a representation election has been conducted under conditions compatible with the exercise of a free choice by the employees, is a matter which Congress has committed to the discretion of...

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