N.L.R.B. v. Sumter Plywood Corp.

Decision Date23 July 1976
Docket NumberNo. 75-1391,75-1391
Citation535 F.2d 917
Parties92 L.R.R.M. (BNA) 3508, 14 Fair Empl.Prac.Cas. 191, 12 Empl. Prac. Dec. P 11,086, 79 Lab.Cas. P 11,532 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUMTER PLYWOOD CORPORATION, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Elliott Moore, Deputy Assoc. Gen. Counsel, Grant Morris, N.L.R.B., Washington, D. C., Walter C. Phillips, Director, Region 10, N.L.R.B., Atlanta, Ga., for petitioner.

Paul O. Miller, III, James R. Lockard, Jackson, Miss., for respondent.

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

Before BROWN, Chief Judge, GOLDBERG and RONEY, Circuit Judges.

GOLDBERG, Circuit Judge:

The National Labor Relations Board (the Board) petitions this Court for enforcement of its order that Sumter Plywood (the Company) bargain collectively with the Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Union). The Company, as respondent, argues that enforcement should be denied because of alleged improprieties on the part of the Union in its organizational campaign, and because of alleged procedural and substantive deficiencies in the Board's review of the Company's challenge to the Union's certification. Although this is by no means an easy case, we have concluded for the reasons that follow that the Union was properly certified by the Board, and thus that the Board's order must be enforced.


The Company is engaged in the manufacture and sale of plywood and lumber products in Livingston, Alabama. Pursuant to the Union's representation petition, and after an organizational campaign to be discussed below, an election was held among the workers at the Company on November 16, 1972. The unit, stipulated to be appropriate, included approximately 241 eligible voters, 204 of whom were black. The tally showed 156 votes for the Union and 77 against, with only four ballots challenged or void.

The Company filed seven objections to behavior alleged to have affected election results. The Board's Regional Director investigated these objections and in February, 1973, issued a Report recommending that the Company's objections be overruled and that the Union be certified. The Company filed four exceptions to this Report. In May, 1973, the Board issued a decision adopting the findings, conclusions and recommendations of the Regional Director, and certifying the Union. Chairman Miller dissented in part from this decision.

Thereafter, the Union requested that the Company begin negotiations. The Company refused to negotiate, and the Union filed an unfair labor practice charge with the Board, alleging that the Company refused to bargain in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5) (1970). After investigating the charge, the Regional Director issued a complaint against the Company in July, 1973. In its answer the Company admitted its refusal to bargain, but challenged the certification of the Union on the grounds 1) that the Regional Director should have sustained the Company's earlier objections to the election, or, in the alternative, that the Company was entitled to a hearing on those objections, and 2) that the Union engaged in racial discrimination (anti-white), which rendered the Union ineligible to utilize the remedial machinery of the Board.

In October, 1973, the Board's General Counsel moved for summary judgment. The Board then transferred the proceeding to itself and ordered the Company to show cause why the motion should not be granted. After reviewing the Company's response, the Board in May, 1974, denied summary judgment, but ordered that a hearing be held only on the specific issue of alleged misrepresentations by the Union concerning initiation fees, fines and dues, the subject of one of the Company's original objections.

After a hearing, an administrative law judge (ALJ) found the indicated objection to be without merit. Accordingly, she concluded that the Company had violated Section 8(a)(5), and recommended that the Board issue an order requiring the Company to bargain on request and certain other relief. After reviewing the record and the ALJ's decision in light of the Company's exceptions and a supporting brief, a unanimous panel of the Board affirmed the ruling, findings, and conclusions of the ALJ, and adopted her recommended order.

The Board now seeks enforcement of that order. Since the Company has admitted its refusal to bargain, the only question before us is whether the Board's conclusion that the Union was a properly certified bargaining agent can be sustained. To answer that question, we must examine several specific allegations of Union improprieties in the election campaign, as well as the broader claim that the Union is racially discriminatory.


At the outset we note that, as a general rule, the burden is on the party seeking to overturn a Board-conducted representation election to establish that the election was not fairly conducted. N.L.R.B. v. Mattison Machine Works, 1961, 365 U.S. 123, 124, 81 S.Ct. 434, 5 L.Ed.2d 455. The question of whether challenged conduct tended to interfere with employees' free choice is one primarily left to the Board's discretion. N.L.R.B. v. A. J. Tower, 1946, 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322; N.L.R.B. v. Bancroft Mfg. Co., 5 Cir. 1975, 516 F.2d 436, 439, cert. denied, 1976, --- U.S. ----, 96 S.Ct. 1112, 47 L.Ed.2d 318; N.L.R.B. v. Trinity Steel Co., 5 Cir. 1954, 214 F.2d 120, 123.

Although the Board aspires to "laboratory conditions" in elections, General Shoe Co., 1948, 77 NLRB 124, we recognize that clinical asepsis is an unattainable goal in the real world of union organizational efforts. On the contrary, it is often the case that "exaggerations, hyperbole and appeals to emotions are the stuff of which election campaigns are made." Schneider Mills, Inc. v. N.L.R.B., 4 Cir. 1968, 390 F.2d 375, 379 (en banc). See also Baumritter Corp. v. N.L.R.B., 1 Cir. 1967, 386 F.2d 117, 120; Collins & Aikman Corp. v. N.L.R.B., 4 Cir. 1967, 383 F.2d 722, 726. Some degree of puffing and propagandizing must be permitted, else the laboratory would be found infected in every case.

Because of our deference to the Board's expertise in these matters, and our recognition that laboratory conditions cannot be expected to prevail, we have explained the burden placed on the objecting party in the following terms:

This is a heavy burden; it is not met by proof of mere misrepresentations or physical threats. Rather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election.

N.L.R.B. v. Golden Age Brewing Co., 5 Cir. 1969, 415 F.2d 26, 30.

It is against the background of these general principles that we examine the specific instances of improper conduct alleged by the Company.

A. Misrepresentations About Fees and Fines.

Throughout these long proceedings, the Company has asserted that the possibilities for a free and fair election were significantly diminished by the Union's statements regarding union fees and fines. Statements made by Sylvester Hicks, a leader of the Union's organizational effort, at meetings and a leaflet distributed nine days before the election carried the following message to employees:

The Company argues, as it did before the Board, that the statements regarding initiation fees and fines are prejudicially inaccurate. The Union's Constitution specifically requires an initiation fee of between fifteen and twenty-five dollars per new member, and the Company asserts that the Union's failure to apprise the employees of this fact was a misrepresentation sufficient for the election to be set aside. The Company challenges the statement, made by Hicks and in the leaflet, that "there are no labeled fines," on the ground that this obscures the fact that the Union can impose "ordinary" fines for violations of by-laws.

These issues come to us in a different procedural posture than those to be discussed below. In denying the General Counsel's motion for summary judgment, the Board directed that there be a hearing on the Company's Objection No. 3, which dealt with the alleged misrepresentations about the cost to the employees of joining the Union. After that hearing, the ALJ found that the challenged statements "did not constitute a substantial misrepresentation of a material fact in issue in the campaign which would reasonably be expected to have a significant impact on the election." Accordingly, she concluded that the objection had been properly overruled in the certification proceeding.

The Board affirmed the ALJ's findings and conclusions. Substantial evidence clearly supports this decision. As to the initiation fees, the Company admits that evidence before the ALJ showed that it had been the standard practice of the Union to waive initiation fees for new members for ninety days following the organization of a new local. The waiver applies to employees whether or not they have signed authorization cards and irrespective of how they voted in the election. 1

The Company argues that the bare statements that there were no initiation fees were nevertheless significant misrepresentations because the waiver was not automatic and was not under the sole control of the local it had to be requested in each case by the Southern Council and then granted by the International Office. It is the Company's contention that

If the employees were not told about each and every step which must be taken before the possibility that initiation fees could be charged was eliminated and/or were told no initiation fees could ever be charged under any circumstances, a misrepresentation was made which was sufficient to cause the election to be...

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