Cross Baking Company v. NLRB

• Decision Date: 02 December 1971
• Docket Number: No. 71-1185.,71-1185.
• Citation: 453 F.2d 1346
• Parties: CROSS BAKING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

453 F.2d 1346 (1971)

CROSS BAKING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 71-1185.

United States Court of Appeals, First Circuit.

Heard November 2, 1971.

Decided December 2, 1971.

Rehearing Denied December 30, 1971.

Martin F. Payson, New York City, with whom Robert Lewis, Roger S. Kaplan, and Jackson, Lewis, Schnitzler & Krupman, New York City, were on brief, for petitioner.

Warren M. Davison, Deputy Asst. Gen. Counsel, with whom Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Edward P. Wendel, Atty., Washington, D. C., were on brief, for respondent.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

The employer's basic defense to this section 8(a) (5) and (1) refusal to bargain case is that the union certification was improper. It assigns two reasons.

1. Fear and Coercion. On November 18, 1968 an incident occurred on a public street in which one Patricia Von Dreden, as the principal actor, and another, assaulted two others, all being employees of the company, because they refused to pledge support to the union. The injuries received by one of the victims kept her from returning to work for two months. Word of this, naturally, got about the plant, and there was talk that others might be assaulted. The election was held on January 22, 1969. The company alleges that this incident produced an atmosphere of fear and coercion which prevented a fair election. The Board held otherwise. 186 N.L.R.B. No. 28 (10/31/70).

We agree with the Board, but we do not agree with certain arguments it advanced in this court. Von Dreden was the principal in-plant union advocate. The Board regards it important that she was not shown to be a paid union agent. The question, however, is not the culpability of the union, but whether an atmosphere of fear and coercion was created in fact. See Home Town Foods, Inc. v. NLRB, 5 Cir., 1967, 379 F.2d 241, 244; Shoreline Enterprises of America, Inc. v. NLRB, 5 Cir., 1959, 262 F.2d 933, 942. It does not follow that fear would be less effective if it had an unofficial origin. Indeed, we can visualize situations where it might be more effective. If union officials instigated violence, anti-union employees might gain adherents to get rid, once and for all, of a belligerent union by voting against it, whereas if the atmosphere was the product of co-employees, the rest of the employees might feel they were going to be left with a disagreeable situation whatever should happen in the election, and hence had best learn to live with it. In any event, we agree with the earlier position of the Board that, regardless of whether coercive acts are shown to be attributable to the union itself, "the important fact is that such conditions existed and that a free election was thereby rendered impossible." Diamond State Poultry Co., 1953, 107 N.L.R.B. 3, 6.

More importantly, we do not agree that the Board's refusal to accept testimony of employees that Von Dreden's conduct created an atmosphere of fear is supported by its citation of NLRB v. Gissel Packing Co., 1969, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547. There is a substantial difference between ex post facto testimony of subjective intent in signing authorization cards, normally offered to contradict their content, and testimony of reaction to force or threats of force. When fear and threats of violence are present, the employees' state of mind is precisely the question at issue. This is not to say that the Board is wrong in considering the circumstances objectively, but subjective evidence is entirely appropriate.¹ Even when the question is the objective one of whether a particular letter sent through the mails was a threat, making the sender criminally responsible, the subjective effect of the letter upon the recipient may be received. See United States v. Barcley, 8 Cir., 1971, 452 F.2d 930. The Board's protest that the evidence is objectionable because it is self-serving, or cannot be rebutted, is reminiscent of obsolete thinking excluding the testimony of interested parties.

Having said this, we in no way disagree with the Board's resolution of this issue based on its finding that Von Dreden was discharged shortly after the assault and did not return, and there were no further incidents during the two months remaining before the election. Even had witnesses testified that they were still frightened, the Board would have been more than justified in finding such testimony unpersuasive. But in point of fact the rejected offers of proof were simply that employees were frightened in November. Nothing was offered to show the atmosphere in January. The company's contention that the Board's action was unwarranted is so frivolous that we have indulged in this discussion simply to register, for future purposes, our views on the matters previously discussed.

2. Misrepresentation. The union campaign commenced in October 1968; the election being scheduled for January 22, 1969. On January 20 the employees received from the union a letter asserting that the advantage of voting union was demonstrated by what "this union" had achieved in another similar plant—75¢ an hour; $30. a week. In point of fact the union was a second union in that plant. The previous union had obtained 15¢ or $6; the electioneering union had achieved a contract that added 60¢, or $24. The Board affirmed the finding of the trial examiner that dollarwise, this was not a material difference. 186 N.L.R.B. No. 28 (10/31/70). It did not rest its finding on the ground that the price was right and that claiming credit due another union was inconsequential, a misrepresentation we condemned in NLRB v. Maine Sugar Industries, Inc., 1 Cir., 1970, 425 F.2d 942, 945, when the other union was entitled to the entire credit. Rather, the Board took the approach that there was a flat dollar exaggeration of what the union accomplished. We accept this approach. The Board, quite correctly, did not adopt the trial examiner's discounting the misrepresentations on the ground that the employees could have checked the statements in the letter and found them untrue. No reason is suggested why an employee should doubt the union's word. To excuse a flat misrepresentation on the ground that the deceived party, having no reason to do so, could have investigated and learned the truth is contrary to both legal and ethical principles. Indeed, such a conclusion as this by a trial examiner gives us deep concern.

There was, however, another deception not noted by the Board. The letter stated that the employees "have received" the increase stated. They had not, even on the 60 cent basis. This was a three-year, progressive contract, roughly one third at a time, viz., about 20 cents at the date in question. Instead of "have received" 75 cents, the employees over a three-year period would average 40 cents. Without discussion the Board concluded "in the context of the large increases which the union did in fact secure, there was not that `substantial departure from the truth * * * which may reasonably be expected to have a significant impact on the election.'" (The quotation is from Hollywood Ceramics, 1962, 140 N.L.R.B. 221, 224.) The sole additional statement or reason given by the Board in support of this was the fact that there were also some holiday and vacation benefits, the value of which could not be measured. We believe this fact both irrelevant and inconsequential.

In seeking to support its decision the Board cites two lines of cases. One involves "extravagant" promises. See, e. g., Olson Rug Co., v. NLRB, 7 Cir., 1958, 260 F.2d 255, 256. An employee can regard a promise for what it is, and discount it accordingly. In the case of a statement of a positive past fact, apparently within the knowledge of the declarer, such decisions are inapposite. Secondly,...