NLRB v. WINCHELL PROCESSING CORPORATION

• Decision Date: 18 November 1971
• Docket Number: No. 71-1206.,71-1206.
• Citation: 451 F.2d 306
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WINCHELL PROCESSING CORPORATION and Winchell Donut House, Inc., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

451 F.2d 306 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WINCHELL PROCESSING CORPORATION and Winchell Donut House, Inc., Respondents.

No. 71-1206.

United States Court of Appeals, Ninth Circuit.

November 18, 1971.

Michael S. Winer, of NLRB (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., for petitioner.

Edwin H. Franzen (argued), of Hill, Farrer & Burrill, Los Angeles, Cal., for respondents.

Before BARNES, DUNIWAY and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The Labor Board petitions for enforcement of its bargaining order against respondent, Winchell Processing Corporation and Winchell Donut House. Following a representation election, the Board certified two unions, Bakery Drivers' Local 276 (Teamsters) and the Bakery and Confectionery Workers' International, as the joint bargaining representative of Winchell's employees. The employer corporation asserts that false and misleading statements in the unions' campaign literature vitiated the election. We agree and deny enforcement of the order.

Winchell makes donut mixes and distributes them to franchised retail outlets. In 1969 the unions began organizing Winchell's production employees, warehousemen and delivery truck drivers. Twelve employees work in these job categories, four as food blenders and eight as drivers and warehousemen. The representation election was held on the morning of July 25, 1969. The unions won, by a seven-to-four vote, with one ballot disqualified.

The Bakery Drivers' Local mailed two leaflets to the employees shortly before the election. One, dated July 22, reached the employees on July 23. The second, dated July 23, arrived at the employees' homes on July 24. The company first learned of both circulars on July 24. The mailings contained charges of employer conduct prejudicial to the workers, assertions about the benefits available under the union's master contract covering bakery drivers in Southern California, assurances about strikes, and an explanation of representation procedures. The timing of the distribution gave Winchell no opportunity to reply.

The leaflets presented false or misleading information in several areas relevant to a rational voter choice. Winchell filed timely objections with the Board, asking it to set aside the election. Although he found a number of ambiguities in the leaflets, the Regional Director decided that they likely had no influence on the election outcome.

I.

The heat of a representation campaign inevitably generates some exaggeration by both sides. The Board in most cases leaves evaluation of election propaganda to the good sense of the employees, on the theory that they are competent to sift the truth from the parties' divergent claims. It will invalidate an election only where a material fact has been misrepresented, the opponent had no opportunity to reply, and the resulting lop-sided presentation significantly impaired the election process. Stewart-Warner Corp., 102 N.L.R.B. 1153, 1158 (1953).

Deciding whether a misleading statement has influenced an election can be a hazardous venture. One cannot look to the voters for assistance. Taking evidence from them would be cumbersome and expensive. Their testimony would likely reveal little. They may not know why they voted as they did. Their stories may be distorted by their loyalties or by fear of reprisal.

One must turn instead to generalizations about the kinds of misinformation likely to influence a rational voter. That inquiry is itself problematic. Conduct that should move an ideal voter may have no actual impact in any given election.

Another difficulty arises when one tries to determine whether a given statement is a material misrepresentation. Many assertions are literally true, yet may still be potentially misleading because important qualifying facts have been omitted. Ambiguities and half-truths of this kind appear to be common in representation campaigns. Reasonable minds can differ over the amount of background information a party should be required to disclose.

In view of the uncertainties inherent in these legal determinations, we must consider carefully what interests we protect by regulating election propaganda. The decisions speak of preventing improper influences from inhibiting the employees' freedom of choice.

"An election can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative." Gallenkamp Stores Co. v. NLRB, 402 F.2d 525, 535 (9th Cir. 1968), quoting NLRB v. Houston Chronicle Publishing Co., 300 F.2d 273, 280 (5th Cir. 1962).

To make a rational choice about joining a union, an employee must examine his present working conditions, try to predict what increased benefits might result from collective bargaining, and weigh the potential improvements against the likelihood of losses from strikes or other breakdowns in his relationship with management. Not an easy calculus, the decision can become hopelessly confused when one introduces at the last minute a substantial quantity of false information about important relevant elements. The absence of misleading assertion does not guarantee a reasoned voter decision, but its presence may preclude any possibility of one.

Even if it made little sense to attempt to increase the likelihood of a rational employee choice, one could still justify some policing of last minute campaign oratory on the ground of fairness to the other party. The stakes are high for both company and union.

To lose is bad enough, but to lose because the other side deluged the workers with lies at the eleventh hour would be intolerable. Rewarding the better liar, when the other side has no opportunity to reply, is hardly the way to lessen industrial strife. Prohibiting significant last minute falsehoods helps assure each side that the outcome will be determined on grounds reasonably related to the merits of its position.

II.

The July 23 mailing, a single sheet, included the following comparison:

"What can the union do for you?" Let\'s answer that by listing part of what we have negotiated in our Master Contract.

1. WAGE INCREASES—Over a period of 30 years, more than double the cost-of-living increases.

2. HOURS—6 days to 5 days operation with no reduction in pay.

3. FRINGE BENEFITS—Over $80.00 a month in the following benefits. * * *

4. VACATIONS—From none to maximum of 5 weeks.

5. HOLIDAYS—1 or 2 to 8 per year.

6. SICK LEAVE—None to 10½ days, accumulative to 30½ days.

7. JOB SECURITY—To some the most important of all. Grievance and Arbitration Clause guards against termination or loss of benefits because of some management whim.

8. Lack of space precludes listing all improvements.

Assertions about union benefits must be held to a fairly close standard of accuracy since a union's statements about its own contracts sound authoritative. Employees are likely to accept them uncritically.

(1) Wage Increases. For...