Baker Canning Co. v. N.L.R.B., 73-2010
| Decision Date | 08 November 1974 |
| Docket Number | No. 73-2010,73-2010 |
| Citation | 505 F.2d 574 |
| Parties | 87 L.R.R.M. (BNA) 3142, 75 Lab.Cas. P 10,423 BAKER CANNING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Leonard Singer, Kansas City, Mo., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, Bert Bisgyer, Atty., N.L.R.B., Washington, D.C., for respondent.
Before HASTINGS, Senior Circuit Judge, and LAY * and CUMMINGS, Circuit Judges.
Petitioner Baker Canning Company grows, processes and packages vegetables in Theresa, Wisconsin. Baker has asked us to set aside an order of the National Labor Relations Board requiring it to bargain collectively with the Union 1 (206 NLRB No. 97). The Board has filed a cross-application for enforcement.
On September 15, 1972, the Board conducted a secret ballot election to decide whether the employees at Baker's plant wished to be represented by the Union. The Union won the election. Four days thereafter, Baker filed an objection alleging that between 7:00 a.m. and 8:30 a.m. on the election day the Union distributed a handbill to Baker employees containing 'false and misleading statements concerning contracts which Petitioner (the Union) has obtained with one of the Employer's competitors.' The handbill is reproduced as the Appendix to this opinion. Baker alleged that due to the timing of the distribution of the handbill it was unable to refute the statements contained therein and that, therefore, the handbill tainted the election.
After investigating the issues raised by Baker's objection, the Regional Director filed a report recommending that the Board certify the Union as the exclusive representative of Baker's employees in the unit involved. He concluded that the information on the handbill was correct in that it set forth 'the existing wage rates of the employees of California Canners and Growers, and the reference to the general or starting wage rates for both California Canners and Growers and the Employer (Baker) are accurate.' He also found that the Union's handbill did not contain 'a misrepresentation sufficient to warrant setting aside the election' and that 'the contents of the handbill did not contain departures from the truth.' Subsequently, the Board adopted the Regional Director's findings and added that the handbill 'does not contain any statements which the employees were unable to evaluate.'
Thereafter, Baker refused to bargain with the Union, resulting in an unfair labor practice charge being placed against Baker. Next, the Regional Director issued a complaint, and subsequently the Board's General Counsel filed a motion for summary judgment with the Board. Summary judgment was granted because the Board concluded that all issues raised by Baker in the unfair labor practice proceeding were or could have been litigated in the prior representation proceeding and because Baker did not offer any newly discovered evidence or allege any special circumstances requiring the Board to reexamine the representation decision. Consequently, the Board found that Baker violated Section 8(a)(5) and (1) of the National Labor Relations Act (29 U.S.C. 158(a) (5) and (1)) and ordered the Company to bargain with the Union upon request and to post appropriate notices.
In a case like this, the guiding principle is not to police or censor propaganda used by the parties at Board elections, but to leave 'to the good sense of the voters the appraisal of such matters * * *.' Linn v. Plant Guard Workers, 383 U.S. 53, 60, 86 S.Ct. 657, 662, 15 L.Ed.2d 582, quoting with approval from Stewart-Warner Corp., 102 NLRB 1153, 1158 (1953). Intemperate, abusive and inaccurate statements made by a union during an attempt to organize employees are to be tolerated under the Act, although neither party is permitted to injure the other 'by circulating defamatory or insulting material known to be false.' 383 U.S. at 61, 86 S.Ct. at 662. We applied these considerations in Follett Corp. v. National Labor Relations Board, 397 F.2d 91, 95 (7th Cir. 1968), noting that the Board should not overlook glaring untruths in campaign material, but at the same time stating that not every inaccuracy in campaign propaganda requires an election to be set aside.
In its objection to the election, Baker complained that the handbill contained 'false and misleading statements,' but no particulars were given to support this sweeping allegation. The gravamen of Baker's attack on the handbill before the Regional Director was that the handbill was falsely misleading because of its omissions. Thus Baker attacked the failure of the handbill to mention that its nearby competitor, California Canners and Growers, does not hire migrant seasonal employees and therefore does not provide the housing and furnishings that Baker provides for such employees. The inclusion of California Canners' top three wage rates in the handbill was attacked as misleading because Baker has no employees in those three wage categories. As noted, the Regional Director and ultimately the Board rejected these criticisms of the handbill on the grounds that it truly set forth the existing wage rates of the employees of California Canners and Growers and accurately referred to the general or starting wage rates for both employers. Although it was recognized that the Union did not reveal all of the factors surrounding its campaign propaganda, the election was approved because the Union had not falsified the data it presented in that 'the contents of the handbill did not contain departures from the truth.'
We agree with the Board that the handbill was not sufficiently misleading to require invalidating the election. Baker first argues that the handbill misled the voters because it represented the California Canners' contract as 'typical' of other agreements won by the Union in the area near Baker's plant, when that contract was actually atypically advantageous to the Union. We, however, find nothing in the handbill even implying that the California Canners' contract was representative of the Union's other agreements.
Baker next complains that the handbill was misleading because it led the voters to believe that the Union had secured the general labor wage rate of $2.27 per hour for migrant seasonal workers at California Canners. Such workers constituted 77% Of the voters at petitioner's plant, while California Canners employed only local seasonal workers. However, the handbill represented accurately that the California Canners' contract contained only one general labor rate, which was applicable to both regular and seasonal employees. Again we find nothing in the handbill implying that there were migrant seasonals at California Canners who received $2.27 per hour.
Even if we assume that the handbill did so imply, the misrepresentation has not been shown to be material, as we shall see. Baker argues that it supplies free housing and utilities to migrant seasonals and asserts the cost of such...
To continue reading
Request your trial
-
KBO, Inc. v. N.L.R.B.
...permitted to injure the other 'by circulating defamatory or insulting material known to be false.' " Baker Canning Co. v. National Labor Relations Bd., 505 F.2d 574, 576 (7th Cir.1974) (quoting Linn, 383 U.S. at 61, 86 S.Ct. at 662); see also National Labor Relations Bd. v. Owners Maintenan......
-
N.L.R.B. v. Chicago Marine Containers, Inc., 83-1909
...on an election. 140 N.L.R.B. at 224. Such language should be left " 'to the good sense of the voters ....' " Baker Canning Co. v. NLRB, 505 F.2d 574, 576 (7th Cir.1974) (citation In addition, as noted by the regional director, although the union's campaign literature appeared at least two w......
-
N.L.R.B. v. Austin Developmental Center, Inc.
...circumstances. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 159-62, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); Baker Canning Co. v. N.L.R.B., 505 F.2d 574, 578 (7th Cir. 1974); N.L.R.B. v. Children's Baptist Home, 576 F.2d 256, 259, 261 (9th Cir. 1978). The discovery of new evidence is a ......
-
N.L.R.B. v. Eurodrive, Inc.
...made by a union during an attempt to organize employees which statements are to be tolerated under the Act." Baker Canning Company v. NLRB, 505 F.2d 574, 576 (7th Cir.1974). Loy's comments concerning the equal employment opportunity laws, according to the Board, simply expressed his opinion......