NLRB v. Southern Foods, Inc., 28892.
| Decision Date | 03 December 1970 |
| Docket Number | No. 28892.,28892. |
| Citation | 434 F.2d 717 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHERN FOODS, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Walter C. Phillips, Director, Region 10, N. L. R. B., Atlanta, Ga., Baruch A. Fellner, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, John I. Taylor, Nan C. Bases, Attys., N. L. R. B., for petitioner.
Lee H. Henkel, Jr., James H. Blanchard, Swift, Pease, Davidson & Chapman, Columbus, Ga., for respondent.
Before JOHN R. BROWN, Chief Judge, and DYER and INGRAHAM, Circuit Judges.
Having concluded that Southern Foods, Inc. violated the National Labor Relations Act § 8(a) (1), (5)1 by refusing to bargain with the Union2 which had been certified as the exclusive bargaining agent of its employees, the National Labor Relations Board ordered the Company to cease and desist from the unfair labor practices, to bargain with the Union upon request, and to post appropriate notices.3 Because we find that the Board improperly certified the Union, enforcement of the order is denied.
During the struggle between the Company and the Union, two certification elections have already been held. The first resulted in a victory for the Union but was ultimately set aside, and another election was held.
After the second election, in which the Union again prevailed, the Company filed timely objections, claiming that the Union had transgressed the bounds of legitimate campaign propaganda. The objection most pertinent to, and dispositive of, our inquiry is Objection No. 4, which reads:
The Union exceeded the bounds of legitimate campaign propaganda by mailing to the employees of Employer a letter dated November 13, 1967, which arrived at the homes of most employees during the day of November 14, 1967, and which was first seen by Employer on the morning of the election, November 15, 1967. Such letter deliberately deceived the employees by stating that "Armour & Company has already offered more in negotiations than Swift and Southern Foods Company pays in wages and benefits here in Columbus, Georgia," when such is completely false and misleading in that wages and total benefits at Southern Foods, Inc. are greater than the wages and benefits offered at Armour & Company. Such letter was mailed to the employees at such a time that Employer had no adequate opportunity to answer such false statement. This misrepresentation inhibited the exercise of free choice of the employees of Employer and rendered the casting of an uncoerced ballot impossible.
After investigation the Regional Director decided that the misrepresentation complained of had sufficient possibility of impact to warrant setting aside the election; he directed that a third election be held.
The Union filed a request for reconsideration of the Regional Director's order. Thereafter, the Regional Director granted the Union's motion and vacated his order directing a third election.
Subsequently the Board found that Objection No. 4 did not afford, in the context of the whole campaign, a substantial basis for assuming that employee free choice had been impaired. The Board certified the Union as the exclusive collective bargaining representative for all employees in the unit.
When the Union requested recognition on the basis of its Board certification, the Company refused. Thereupon, a Section 8(a) (5) charge was filed and a complaint issued. In its answer the Company, alleging that the Union's certification was invalid, admitted its refusal to bargain but denied any violation of the Act. On the General Counsel's motion for summary judgment, the Trial Examiner determined that he was bound by the Board's findings in the representation proceedings and that no litigable issue was before him. Summary judgment was granted, and the Board approved and adopted this decision.
This Court has already delineated the permissible scope of its review in, and fashioned guidelines for, cases of this genre. NLRB v. Golden Age Beverage Co., 5 Cir. 1969, 415 F.2d 26, 29-30, and Home Town Foods, Inc. v. NLRB, 5 Cir. 1969, 416 F.2d 392, 394-396, 400, provide detailed descriptions of our role. We need not retread this well-worn trail. We may proceed immediately to the focal point of this controversy: whether the Union's eleventh hour pre-election letter contained false or misleading statements which contaminated the laboratory conditions and rendered the certification election invalid. In substance, this is the issue raised by Southern Foods' Objection No. 4.
To an otherwise unobjectionable letter received by Company employees on the eve of the election, the Union added this postscript:
Armour & Company has already offered more in negotiations than Swift and Southern Foods Company pays in wages and benefits here in Columbus, Ga. The Armour workers committee and members are still holding out for more — and they\'ll get it!
According to the Union, this postscript was in response to a speech delivered two days before the election by a Company representative. But the Company speech did not mention wages or benefits. Rather, it generally questioned the diligence and efficacy of Union representation. However, the Union postscript, the alleged reply to the charges made in this speech, specifically alluded to wages and benefits. Armour, it claimed, had already offered more than Swift and Southern Foods. The necessary inference is that Union bargaining produced such an offer.
To substantiate Objection No. 4, the Company submitted the testimony of an official at Armour's Columbus plant, and a comparison between the wage and benefit scales at the Armour and Southern Foods plants in Columbus. The Armour official testified that the wage rates and fringe benefits in effect at Swift & Company...
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