N.L.R.B. v. Bancroft Mfg. Co., Inc.

Decision Date23 July 1975
Docket NumberNo. 74-3052,74-3052
Citation516 F.2d 436
Parties89 L.R.R.M. (BNA) 3105, 10 Fair Empl.Prac.Cas. 1429, 10 Empl. Prac. Dec. P 10,335, 77 Lab.Cas. P 11,027 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BANCROFT MANUFACTURING COMPANY, INC., and Croft Aluminum Company, Inc., et al., Respondents.
CourtU.S. Court of Appeals — Fifth Circuit

Elliott Moore, Deputy Assoc. Gen. Counsel, Paul J. Spielberg, Atty., N.L.R.B., Washington, D.C., Charles M. Paschal, Jr., Director, Region 15, N.L.R.B., New Orleans, La., for petitioner.

Gordon E. Jackson, W. Kerby Bowling, Memphis, Tenn., John H. White, Jr., McComb, Miss., for respondents.

Application for Enforcement of an Order of the National Labor Relations Board (Mississippi Case).

Before GOLDBERG, CLARK and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

Bancroft Manufacturing Company, Inc. (the Company) produces various aluminium products at three plants in and around McComb, Mississippi. On July 1, 1971, the National Labor Relations Board conducted a union representation election at the three facilities; 361 Company employees voted to be represented by the Southern Council of Industrial Workers, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (the Union), and 286 employees voted against the Union. 1 Although the NLRB certified the Union as the employees' bargaining representative, the Company made timely objection to alleged Union conduct affecting the election results and has consistently refused to bargain with the Union. After nearly three years of procedural skirmishing, including an evidentiary hearing before an administrative law judge, the NLRB found that the Company's refusal to bargain was unjustified and constituted a violation of sections 8(a)(5) and (1) of the National Labor Relations Act. 2 1973, 210 NLRB No. 90. Now, almost four years after the election, the Board asks us to enforce a bargaining order against the Company. We have carefully examined the record and have decided that substantial evidence supports the Board's determination that the election results correctly reflected the free and reasoned choice of a majority of the employees of the bargaining unit. This is a close case, but in the absence of absolute certainty, we turn to the certitude of the administrative law judge and the Board, whose findings enable us to conclude that enforcement shades denial; the Board's order will be enforced.

Before we begin our discussion of the particulars of this case, we must remind ourselves that the burden of proof of unfairness in representation elections is on the complaining party, N.L.R.B. v. Mattison Machine Works, 1961, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455; N.L.R.B. v. Con-Pac, Inc., 5 Cir. 1975, 509 F.2d 270; N.L.R.B. v. White Knight Mfg. Co., 5 Cir. 1973, 474 F.2d 1064; Bush Hog, Inc. v. N.L.R.B., 5 Cir. 1969,420 F.2d 1266, and that the Board's long and varied experience in representation matters requires us to give special respect to its decisions as to whether given conduct reasonably tended to interfere with the employees' free choice. 3 N.L.R.B. v. Leatherwood Drilling Co., 5 Cir. 1975, 513 F.2d 270; N.L.R.B. v. Muscogee Lumber Co., Inc., 5 Cir. 1973, 473 F.2d 1364; N.L.R.B. v. Golden Age Beverage Co., 5 Cir. 1969, 415 F.2d 26. As long as the NLRB's decision is reasonable and based upon substantial evidence, we must enforce its order, even though we might have taken a different view had the case come before us as an original matter. 29 U.S.C. § 160(f); Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456, 469; T.I.M.E. DC, Inc. v. N.L.R.B., 5 Cir. 1974, 504 F.2d 294, 299-300. With these decisional guidelines in mind, we turn to the substance of the Company's complaints.


Forty-three percent of the Company's workforce at the time of the election were black people, so that much of the Union's organizing effort was devoted to convincing the blacks that their interests would best be served by choosing the Union to represent them. The Company contends that the Union's actions in this regard amounted to an inflammatory appeal to racial passion which caused the very large number of black employees to vote for the Union on the basis of racial considerations alone. The major support for this theory is provided by the Board's finding that Union organizer Sylvester Hicks, a black man, warned black employees on several occasions that "if the blacks did not stay together as a group and the Union lost the election, all the blacks would be fired." Furthermore, in response to employee questions about layoffs, Hicks warned that "seemingly the trend was . . . that the blacks were going to be laid off if they didn't stick together and try to get the plant organized to where they would have some protection. . . ." Finally, a rumor had it that the Company would give an automobile to a friendly black employee, J. C. Butler, if Butler helped to swing the black vote. At a meeting attended by a large number of white and black employees, Rev. Harry Buie, a black minister employed by the Delta Ministry (an anti-poverty organization) and invited by the Union to assist in the campaign, commented on this rumor by lamenting that "it had been called to his attention that an employee was to be given a car to swing the black vote. He understood that he was a soul brother and the part that hurt him so bad was that it would be a sold out soul brother."

The Company complains that the remarks of Hicks and Buie were grossly inaccurate and were calculated to instill in the black employees the conviction that their employer held blacks in low esteem and intended to discriminate against them in an invidious manner. The racially-oriented propaganda, the Company contends, was so likely to impair the blacks' capacity for a reasoned decision that the election must be set aside. The administrative law judge found, however and the Board agreed that these remarks were unimportant and not unreasonable in the particular situation, and that even if the statements were untrue, they had not exercised a significant influence on the results of the voting.

The NLRB first enunciated a policy for dealing with racially inflammatory remarks in representation campaigns in Sewell Mfg. Co., 1962, 138 NLRB 66. In Sewell, a Mississippi employer conducted a strident anti-union campaign on the theme that since the union seeking to represent its employees supported the struggle for equal civil rights for black citizens, a vote for the union was tantamount to a vote for an integrated society, a goal the employer assumed its all-white workforce rejected. When the union lost the election, it sought to have the balloting invalidated on the ground that the employer had conducted a campaign of race hate which succeeded only too well in diverting the employees' attention from the real issues at stake in the election. The NLRB Regional Director declined the union's request, on the ground that none of the statements made by the employer were alleged to be untrue, and that the charges were mere propaganda which the employees could weigh for themselves. The Board disagreed with the Regional Director and voided the election, finding that the employer had deliberately sought to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals which have no place in an election campaign. The NLRB reasoned:

We take it as datum that prejudice based on color is a powerful emotional force. We think it also indisputable that a deliberate appeal to such prejudice is not intended or calculated to encourage the reasoning faculty.

What we have said indicates our belief that appeals to racial prejudice on matters unrelated to the election issues or to the union's activities are not mere "prattle" or puffing. They have no place in Board electoral campaigns. They inject an element which is destructive of the very purpose of an election. They create conditions which make impossible a sober, informed exercise of the franchise. The Board does not intend to tolerate as "electoral propaganda" appeals or arguments which can have no purpose except to inflame the racial feelings of voters in the election.

This is not to say that a relevant campaign statement is to be condemned because it may have racial overtones. . . .

We would be less than realistic if we did not recognize that such statements, even when moderate and truthful, do in fact cater to racial prejudice. Yet we believe that they must be tolerated because they are true and because they pertain to a subject concerning which employees are entitled to have knowledge the union's position on racial matters.

So long, therefore, as a party limits itself to truthfully setting forth another party's position on matters of racial interest and does not deliberately seek to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals, we shall not set aside an election on this ground. However, the burden will be on the party making use of a racial message to establish that it was truthful and germane, and where there is doubt as to whether the total conduct of such party is within the described bounds, the doubt will be resolved against him.

138 NLRB at 71-72. See also Universal Mfg. Corp., 1966, 156 NLRB 1459.

On the same day that Sewell was decided, the Board concluded that employer literature not dissimilar to that used in Sewell fell within permissible bounds because the statements were made in a generally temperate fashion. Allen-Morrison Sign Co., Inc., 1962, 138 NLRB 73. In this spirit, the Board has consistently approved union campaigns which stress black racial pride, the past history of discrimination against blacks in American society or the present disadvantaged status of blacks as a class, where the statements do not claim special privileges for blacks, on the theory that such statements are true and that economic issues, even racially-oriented ones, properly form the core...

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