N.L.R.B. v. Precise Castings, Inc.

• Decision Date: 17 October 1990
• Docket Number: No. 89-3560,89-3560
• Citation: 915 F.2d 1160
• Parties: 135 L.R.R.M. (BNA) 2784, 59 USLW 2265, 116 Lab.Cas. P 10,372 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRECISE CASTINGS, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1160

915 F.2d 1160

135 L.R.R.M. (BNA) 2784, 59 USLW 2265,

116 Lab.Cas. P 10,372

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRECISE CASTINGS, INC., Respondent.

No. 89-3560.

United States Court of Appeals Seventh Circuit.

Argued Sept. 12, 1990.

Decided Oct. 17, 1990.

Aileen A. Armstrong, Elliott Moore, Paul Hitterman, N.L.R.B., Washington, D.C Herbert V. Adams, III, Elizabeth Kinney, Linda McCormick, N.L.R.B., Chicago, Ill., Peter D. Winkler, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., Donald J. Crawford, N.L.R.B., Chicago, Ill., for petitioner.

Charles W. Pautsch, Wessels & Pautsch, Milwaukee, Wis., for respondent.

Before WOOD, Jr., and EASTERBROOK, Circuit Judges, and GRANT, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

Must the National Labor Relations Board print ballots in all languages used in the workplace? Unless the answer is "yes" in every case, we must enforce the Board's order requiring Precise Castings, Inc., to bargain with Local 18-B of the Electronic, Electrical, Salaried, Machine and Furniture Workers union. This union won an election at Precise Castings by a vote of 18 to 13, with 2 spoiled ballots and 3 challenged votes. The ballots were in English. Ten of the 41 employees eligible to vote read and speak only Spanish. None of them has complained to the Board, and Precise Castings did not introduce evidence suggesting that even one of its Spanish-speaking employees was confused. Unless we create a per se rule that the Board must print ballots in the languages preferred by the employees, there is no reason to deny effect to its order in this case.

The National Labor Relations Act guarantees a free choice of representative (or no representative). 29 U.S.C. Sec. 157. Elections allow the employees to express their choice. Precise Castings argues that ballots in an unreadable language may prevent the employees from expressing that choice accurately. Although Spanish-speaking persons living in the United States undoubtedly know that "yes" means "si" and that "no" has the same meaning in both languages, they may not know what question is being asked, that "yes" expresses a preference for a particular union, as opposed to the status quo. Only a multilingual ballot assures the "laboratory conditions" necessary to effective choice, Precise Castings submits, with support from Marriott In-Flite Services v. NLRB, 417 F.2d 563 (5th Cir.1969). Contra, NLRB v. Lowell Corrugated Container Corp., 431 F.2d 1196 (1st Cir.1970).

The fifth circuit found two defects in the use of English ballots when a third of the voters were literate only in Spanish. First, the court believed, the election departed from the Board's policy of using bilingual ballots; second, the court thought that elections using ballots printed in a language employees cannot understand are unfair. 417 F.2d at 567. The first of these need not detain us. Since Marriott the Board has made it clear that it has no policy requiring the use of ballots in multiple languages. Northwest Products, Inc., 226 N.L.R.B. 653 (1976). The last vestige of that policy, if the Board ever had one (it denied having one at the time of Marriott, and Lowell concluded that it had none), was a statement in the General Counsel's practice manual that if a regional director deems election notices in multiple languages appropriate, the director also should print ballots in those languages. Casehandling Manual pt. 2 Sec. 11314 (1984) ("If a foreign language notice is used, that language must also be used on the ballot."). The current version of the Manual Sec. 11314 (1989) changes this to: "If a foreign language notice is used that language may also be used on the ballot."

Marriott's second and principal conclusion is that when many voters have "no access to ballots in language [they] can understand [the election] necessarily falls below the minimum laboratory standards of fairness.... [I]t would be whimsical to establish meticulous safeguards against coercion, misinformation, and corruption if a sizeable portion of the electorate, though untrammeled in its choice, does not know how to exercise it." 417 F.2d at 567 (footnotes omitted). When the fifth circuit wrote this in 1969, the Board required elections to take place in "laboratory conditions", free from the distortions common in political contests. Hollywood Ceramics Co., 140 N.L.R.B. 221 (1962); Gummed Products Co., 112 N.L.R.B. 1092 (1955). This doctrine was based in part on a belief that labor elections should be "better" than political ones, and in part on a belief that employees were easily misled and incapable of expressing their true choice except in "laboratory conditions". Since 1969 there has been a revolution in the Board's thought. Partly in response to research showing that employees were considerably more capable, and threats or propaganda less effective than the Board had believed, see Julius G. Getman, Stephen B. Goldberg & Jeanne B. Herman, Union Representation Elections: Law and Reality (1976), the Board overruled Hollywood Ceramics. Shopping Kart Food Market, Inc., 228 N.L.R.B. 1311 (1977), overruled by General Knit of California, Inc., 239 N.L.R.B. 619 (1978), overruled by Midland National Life Insurance Co., 263 N.L.R.B. 127 (1982). Today the Board is much more likely than in 1969 to believe that employees can fend for themselves. It has pulled the rug out from under Marriott. The Board no longer establishes "meticulous safeguards" for elections, so it cannot be "whimsical" to assume that employees can cast accurate votes despite the fact that the ballot is in English. Questionable, perhaps; whimsical, no.

Following the lead of NLRB v. A.J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946), we have held repeatedly that the Board possesses discretion to set the rules for conducting elections and to determine what procedures suffice to protect the employees' right to choose. E.g., NLRB v. Lovejoy Industries, Inc., 904 F.2d 397, 402 (7th Cir.1990); Mosey Manufacturing Co. v. NLRB, 701 F.2d 610, 615 (7th Cir.1983) (in banc). Cf. NLRB v. Curtin Matheson Scientific, Inc., --- U.S. ----, 110 S.Ct. 1542, 1549, 108 L.Ed.2d 801 (1990); NLRB v. Bufco Corp., 899 F.2d 608, 610-11 (7th Cir.1990); Communication Workers v. NLRB, 784 F.2d 847, 849 (7th Cir.1986). Making labor elections more like political elections is among the Board's legitimate choices. And most ballots in political elections are in English. True, the Voting Rights Act has, since an amendment in 1975, 42 U.S.C. Sec. 1973aa-1a(b), required covered jurisdictions to offer ballots in languages used by 5% of the populace, if those groups are below the national norm in literacy. In the main, however, persons who do not speak English must learn from other sources how to cast an effective vote. See also Puerto Rican Organization for Political Action v. Kusper, 490 F.2d 575 (7th Cir.1973) (a covered jurisdiction could comply with the version of the Voting Rights Act then in force by providing directions in Spanish without necessarily printing the ballots in Spanish).

Voting for one's choice is the least worry of a person who does not speak English. How is this person to choose? The campaign is in English, the principal media are in English. Anyone who aspires to informed preferences must read newspapers in other languages, discuss the subject with friends who can follow the campaign in English, and so on. A person with the ability to make an intelligent choice is likely to have the resources to express this choice at the polls. This is so of labor elections no less than of political elections. When a significant fraction of the employees neither speak nor read English, both the union and the employer will campaign to the employees in their own language. Seeking support, both union and employer will seek to persuade; seeking to translate support into victory, both union and employer will inform employees how to express their choice. So although the ballot appears only in English, and the employee therefore cannot read the question being asked, neither union nor employer will leave the employee in doubt. The union will tell the workers (in their own tongues) to check the "yes" box if they favor it; the...