NLRB v. Bonnie Enterprises, 9594.
| Decision Date | 02 February 1965 |
| Docket Number | No. 9594.,9594. |
| Citation | 341 F.2d 712 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BONNIE ENTERPRISES, INC., Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Leonard M. Wagman, Attorney, N. L. R. B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Gary Green, Attorney, N. L. R. B., on brief), for petitioner, M. R. Broudy, Norfolk, Va. (Broudy & Broudy, Norfolk, Va., on brief), for respondent.
Before SOBELOFF and BRYAN, Circuit Judges, and HUTCHESON, District Judge.
The National Labor Relations Board (hereinafter called the Board) seeks enforcement of an order entered by it on February 11, 1964 requiring the respondent, Bonnie Enterprises, Inc., to recognize Local 305, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO (hereinafter called the Union) as the exclusive bargaining representative of all its meat department employees at the retail stores of Respondent located in Virginia, as the result of an election held by the Board on February 14, 1963.
Respondent filed timely objections to the conduct of the election and the order here involved was entered adverse to Respondent's contentions.
The controversy involves two issues: (1) Whether the campaign literature issued by the Union warranted setting aside the election; and (2) whether the ballots of certain voters should not be counted because of the asserted supervisory status of those voters.
The Campaign Literature. On election day and on the preceding day the Union distributed to employees a circular which reads as follows:
HANDBILL #2
The provisions listed below are the Union's program and are in all Meat Cutters contracts in this and other areas.
1. Vacation:
2. Six paid holidays:
New Year's Day Memorial Day Fourth of July Labor Day Thanskgiving Day Christmas Day
3. Group Life Insurance for the employee and his family as well as Sick Pay for time lost for sickness.
4. Pension Plan.
5. Time and one-half (1½) pay for all hours over forty (40) hours in any week.
6. Time and one-half (1½) pay for all hours worked on a holiday plus the holiday pay.
7. Time and one-half (1½) for all hours worked on Sundays.
8. A grievance procedure, which means that the Company cannot push you around to suit themselves.
9. Two (2) fifteen (15) minute paid coffee breaks each day.
10. Seniority:
Which means that the Company cannot shove you all over the map to suit themselves.
11. All uniforms are furnished and laundered by the Company.
12. Leaves of Absence for pregnancy, personal reasons, union business and death in the family without loss of seniority.
NO ONE BUT NO ONE WILL KNOW HOW ANYONE VOTES UNLESS THE EMPLOYEE HIMSELF TELLS.
FULL DETAILS ON WAGE RATES WILL BE GIVEN AT A LATER DATE.
Respondent contends that the circular so distributed contained willful and substantial mis-statements of fact designed and calculated to affect the results of the election.
It subsequently developed that the benefits as listed in the circular are not in all of the Union's contracts in this and other areas. The Union's contract with Colonial Stores contained all the claimed benefits but the Giant Food contract did not contain the provisions for a 4th week of vacation, a pension plan, sick benefits, group life insurance for the employee and his family, nor two fifteen minute coffee breaks each day. The Union had two Richmond contracts in which were lacking the following benefits: Group life insurance for the employee and his family; pension plan; time and one half for all hours worked on holiday plus holiday pay; time and one half for time worked on Sunday and two fifteen minute paid coffee breaks each day. There were two other contracts in effect neither of which provides for a pension plan; one has no provision for 3rd or 4th week vacations, group life insurance for the employee and his family, nor sick pay for time lost.
It is contended in behalf of the Board that the circular is not a material misrepresentation but is merely an exaggeration which the Board, while not condoning, has left for the voter to evaluate, although the Board concedes that it is "not completely correct". In its brief, it is contended that the circular did not substantially distort the basic fact which the Union sought to communicate, that is, it had obtained for other employees the listed contract benefits and that in general it could not reasonably be expected to have a significant impact on the election, being only a "minor distortion" of some facts. It then undertakes to compare these statements with the extravagant promises so often made by and in behalf of candidates for public office, with which we are so familiar.
A consideration of the benefits which the Union stated "are in...
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...the misrepresentations before the election." Celanese Corp. v. NLRB, 291 F.2d 224, 226 (7th Cir. 1961); see NLRB v. Bonnie Enterprises, Inc., 341 F.2d 712, 714 (4th Cir. 1965); Annot., 3 A.L.R.3d 889 (1965); cf. Linn v. United Plant Guard Workers, 383 U.S. 53, 60, 86 S.Ct. 657, 15 L.Ed.2d 5......
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