Sewell Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 9, 1962

138 N.L.R.B. 66 (N.L.R.B. 1962)

66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sewell Manufacturing Company and Amalgamated Clothing
Workers of America, AFL-CIO, Petitioner. Case No. 10-RC-
5016. August 9, 1962
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to the provisions of a stipulation for certification upon
consent election, approved June 30, 1961, an election by secret ballot
was conducted July 21, 1961, under the direction and supervision of
the Regional Director for the Tenth Region in the unit which had
been found appropriate to determine whether the employees therein
desired to be represented by the Petitioner for purposes of collective
bargaining. Upon the conclusion of the balloting the parties were
furnished with a tally of ballots which showed that of approximately
1,339 eligible voters, 1,322 cast ballots of which 331 were for, and 985
against, the Petitioner, 5 ballots were challenged, and 1 ballot was
void. The number of challenged ballots was insufficient to affect the
election results. Thereafter the Petitioner filed timely objections to
conduct affecting the results of the election.
After an investigation, the Acting Regional Director on August 25,
1961, issued his report on objections, in which he recommended that
the objections be overruled. Petitioner filed timely exceptions to the
Acting Regional Director's report.
The Board has considered the Acting Regional Director's report
and the exceptions thereto, and upon the entire record in this case
finds merit in the exceptions in certain respects discussed below.'
2. The Petitioner objected to the election upon the ground, inter
alia, that the Employer, by various propaganda means, had resorted
to appeals to racial prejudice to prevent a free election.
The elections were held on July 21, 1961, at Bremen and Temple,
Georgia, where the Employer's plants are located. Bremen has a
population of less than 3,000; Temple, a population of under 1,000.
Both are located in Haralson County, on the Alabama border, in
northwest Georgia, approximately 50 miles west of Atlanta.
On July 7, 1961, 2 weeks before the scheduled election, the Employer
mailed to its employees a large picture showing a closeup of an un-
identified Negro man dancing with an unidentified white woman.
Underneath was a caption in large, bold letters reading : "The C.I.O.
Strongly Pushes and Endorses the F.E.P.C." On the same day the
i In view of the disposition of the ease hereinafter made, we find it unnecessary to pass
upon the Acting Regional Director's recommendations and the Petitioner's exceptions as
to objection No. 1. No exceptions were filed with respect to the Acting Regional
Director ' s recommendation that objection No. 2 be overruled ; accordingly , we adopt that
recommendation.
138 NLRB No. 12.
SEWELL MANUFACTURING COMPANY 67
Employer also sent the employees a reproduction of the June 4, 1957,
front page of the Jackson Daily News, a newspaper published in
Jackson, Mississippi, which contains a picture, four columns wide, of
a white man dancing with a Negro woman. The caption beneath the
picture reads :
UNION LEADER JAMES B. CAREY DANCES WITH
A LADY FRIEND
He is president of the IUE
Which Seeks to Unionize Vickers Plant here.
Underneath the picture is a story headed : "Race Mixing Is An Issue
As Vickers Workers Ballot."
On July 19, 1961, the president of the Employer sent a letter to
employees setting forth reasons why the president would vote against
the Petitioner if he were permitted to vote. Among these reasons is
the following : "I would object to paying assessments so the union can
promote its political objectives such as the National Association for
the Advancement of Colored People, and the Congress of Racial
Equality."
On July 13, 1961, the Haralson County Tribune, under a headline
describing the election to be held at the Employer's plants, carried
the following news story :
The following reprint of a letter sent out by this union shows how
some of the dues paid to this union by union members is being
spent : Following is a letter from and [sic] James B. Carey,
secretary-treasurer to James Farmer, national director, Congress
of Racial Equality, covering transmittal of a check for $5,000
for expenses incurred by CORE in connection with the "Freedom
Riders."
Appended to the article was a letter from the Industrial Union De-
partment, AFL-CIO, signed by Walter Reuther and James B. Carey,
to the national director of the Congress of Racial Equality. The
letter stated that the Industrial Union Department was enclosing a
check for $5,000 "as an expression of our solidarity with CORE and
our support of its work in the field of civil rights. We are requesting
that this money be used in connection with expenses arising from
CORE's `Freedom Ride' project." The letter went on to praise the
"Freedom Riders" and to criticize actions of State officials in Alabama
and Mississippi as allegedly violative of Federal law. According to
the Regional Director, the wife of the publisher of the Haralson
County Tribune was responsible for the article.
During the 4 months preceding the election, the Employer distrib-
uted to employees copies of Militant Truth, a four-page monthly
662353-63-vol. 138-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paper published in Greenville, South Carolina.2 In its columns are
a number of statements dealing with racial matters. In a two-page
article entitled "Militant Truth and the Labor Unions," there is this
statement :
It isn't in the interest of our wage earners to tie themselves to
organizations that demand racial integration, socialistic legisla-
tion, and free range of communist conspirators.
In a two-column article listing plants in which unions had lost elec-
tions, there is the statement :
Another factor that merits consideration is the large percentage
of union victories in plants that employ all, or nearly all, Negro
labor. Because the communists always operate under the guise
of being "the great uplifters" of "the underprivileged," and
promise social equality to the Negro, it is easy to understand why
many Negroes are more easily influenced and misled by the
radical labor union organizers.
In an article on integration (not on labor matters), there is a ref-
erence to the Garland Fund as having made a contribution to the
NAACP, and reference to "Sidney Hillman, the Russian-born
Founder of the Amalgamated Clothing Workers," as one of its di-
rectors. The same issue contains a reprint of an article from The
Worker, dealing with "freedom riders." According to Militant Truth,
The Worker article takes time out "to praise the various AFL-CIO
unions for their part in demanding total integration and promoting
both class and race warfare ." Another article dealing with the Negro's
progress in America refers to "The Communist Party, the NAACP,
the labor unions, the National Council of Churches, the Kennedy
Administration and their ilk ..." as those who "would have us believe
that the Negro race in America is a poor, starving, downtrodden
people."
The Regional Director ruled that the foregoing literature did not
justify setting aside the election upon the ground that, "while the
Board has consistently held that appeals to religious and racial preju-
dices are not condoned, such literature does not exceed the permissible
bounds of preelection propaganda." For this conclusion, the Re-
gional Director cited the S1iarnay case,' in which a union objected to
2 In the April 1961 issue is this statement of the publication 's beliefs:
MILITANT TRUTH has been published as an independent voice for more than
twenty years, proclaiming the gospel message, true to the Bible as God's Holy Work ;
supporting free, constitutional Americanism , opposing modernism ; socialism, com-
munism and all other ideologies which undermine and destroy the Christian faith and
constitutional government in this great Republic.
MILITANT TRUTH believes in a FREE America. We believe in private enterprise.
We believe in private capitalism . We believe in the American wage earner . We would
protect him from oppression and exploitation either from management , from govern-
ment bureaucracy , or from power-drunk labor union monopolies.
a Sharnay Hosiery Mills, Inc., 120 NLRB 750.
SEWELL MANUFACTURING COMPANY 69
an election because the employer, in a letter to employees, had dis-
cussed the union's position on the issue of racial integration. The
letter had stated that the union was strongly prointegration, had sub-
mitted -a prointegration brief to the Supreme Court, was striving to
eliminate segregation from every walk of life, and was a member of
the AFL-CIO which had made a monetary contribution to the
NAACP. In refusing to set aside the election because of this letter,
the Board said (120 NLRB at 751) :
The issue before us is a narrow one. The Petitioner concedes
that there were no threats or promises, and it is not suggested
that the Employer misrepresented the Petitioner's position.- We
are asked, rather, to hold that the mere mention of the racial
issue, in an election campaign, is per se improper and grounds
for setting aside any and all elections where such might occur
.... We note that there is no misrepresentation, fraud, violence,
or coercion and that the statements here were temperate and
factually correct. They therefore afford no basis for setting aside
the results of the election.
We do not agree with the Regional Director that the rationale of
the Sltarnay case requires overruling of the objections in the present
case. -
A Board election is not identical with a political election. In the
latter, public officials conducting the election have no responsibility
beyond the mechanics of the election. Aside from such things as libel
restrictions and legal requirements to identify the source of cam-
paign literature and advertising, the law permits wide latitude in
the way of propaganda-truth and untruth, promises, threats, ap-
peals to prejudice. It is only the sense of decency of the candidates
and their supporters and the maturity of the electorate which places
a restraint upon the kind of propaganda used.
By way of contrast, the Board not only conducts elections, but it
also oversees the propaganda activities of the participants in the
election to insure that the voters have the opportunity of exercising
a reasoned, untrammeled choice for or against labor organizations
seeking representation rights 4 The Board has said that in election
proceedings it seeks "to provide a laboratory in which an experiment
may be conducted, under conditions as nearly ideal as possible, to
' See N L .R.B. v. A . J. Tower Company, 329 U.S. 324; N .L.R.B. v. Waterman Steamship
Corporation, 309 U S 206, 226 As the Court has pointed out the "control of the election
proceeding and the determination of the steps necessary to conduct that election fairly
were matters which Congress entrusted to the Board alone. " ( Emphasis supplied )
Waterman, supra , at 226. In discharging this function the Board , of course , evaluates
the particular conduct under consideration against the entire pattern of circumstances
attending the election. It is in this total context that the Board exercises the broad discre-
tion with which it is vested to determine whether an election fairly reflects the true wishes
of the employees participating in that election . General Shoe Corporation, 77 NLRB 124.
The correctness of the Board 's determination turns on whether in this total context that
broad discretion has been properly exercised or has been abused.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determine the uninhibited desires of the employees." ° Where for
any reason the standard falls too low the Board will set aside the
election and direct a new one. Unsatisfactory conditions for holding
elections may be created by promises of benefits,° threats of economic
reprisals,' deliberate misrepresentations of material facts by an em-
ployer ° or a union,' deceptive campaign tactics by a union,1° or by
a general atmosphere of fear and confusion caused by a participant
or by members of the general public-" Standards, particularly those
of permissive propaganda, are not fixed and immutable. They have
been changed and refined, generally in the direction of higher
standards.
Our function, as we see it, is to conduct elections in which the
employees have the opportunity to cast their ballots for or against a
labor organization in an atmosphere conducive to the sober and in-
formed exercise of the franchise, free not only from interference, re-
straint, or coercion violative of the Act, but also from other elements
which prevent or impede a reasoned choice.
We are faced in this case with a claim that by a deliberate, sus-
tained appeal to racial prejudice the Employer created conditions
which made impossible a reasoned choice of a bargaining representa-
tive and therefore that the election should be set aside.12
Some appeal to prejudice of one kind or another is an inevitable
part of electoral campaigning, whether in the political or labor field.
Standards must be high, but they cannot be so high that for practical
purposes elections could not effectively be conducted. There are
propaganda appeals used in elections which we do not approve or
condone, but which we tolerate, leaving the proper weighing of such
appeals to the good sense and judgment of the electorate. Such tol-
erated propaganda has been characterized as "prattle rather than
precision." 13 The Board has stated its practice as follows: 14
The Board normally will not censor or police preelection propa-
ganda by parties to elections, absent threats or acts of violence.
... Exaggerations, inaccuracies, partial truths, name-calling, and
falsehoods, while not condoned, may be excused as legitimate
propaganda, provided they are not so misleading as to prevent
the exercise of a free choice by employees in the election of their
General Shoe Corporation, 77 NLRB 124, 127.
e International Shoe Company, 123 NLRB 682
r L. C. Ferguson and E. F Seggern, d/b/a Shovel Supply Company, 121 NLRB 1485
8 United States Gypsum Company, 130 NLRB 901.
9 The Gummed Products Company, 112 NLRB 1092.
10 Heintz Division, Kelsey-Hayes Company, 126 NLRB 151
11 P D. Gwaltney and Company, Inc, 71 NLRB 371.
12 This is not a case involving threats or promises with racial overtones. See, e.g,
Granwood Furniture Company, 129 NLRB 1465; Westinghouse Electric Corporation (Meter
Plant), 119 NLRB 117.
is 018on Rug Company v. N.L R.B., 260 F. 2d 255, 257 (CA 7).
It The Gummed Products Company, 112 NLRB 1092, 1093.
SEWELL MANUFACTURING COMPANY 71
bargaining representative. The ultimate consideration is whether
the challenged propaganda has lowered the standards of cam-
paigning to the point where it may be said that the uninhibited
desires of the employees cannot be determined in an election.
The Board has considered as propaganda a single sentence reference
to the religious background of the employer.15 But the appeals made
to racial prejudice in this case are different both in kind and intensity
from the single, casual religious reference made in the Paula Shoe
case.
We take it as datum that prejudice based on color is a powerful
emotional force. We think it also indisputable that a deliberate ap-
peal to such prejudice is not intended or calculated to encourage the
reasoning faculty.
What we have said indicates our belief that appeals to racial preju-
dice on matters unrelated to the election issues or to the union's
activities are not mere "prattle" or puffing. They have no place in
Board electoral campaigns. They inject an element which is destruc-
tive of the very purpose of an election. They create conditions which
make impossible a sober, informed exercise of the franchise. The
Board does not intend to tolerate as "electoral propaganda" appeals
or arguments which can have no purpose except to inflame the racial
feelings of voters in the election.
This is not to say that a relevant campaign statement is to be con-
demned because it may have racial overtones. In Sharnay, supra, the
employer in a letter to employees made a temperate, factually correct
statement of the petitioning union's position on integration. In Allen-
Morrison Sign Co., Inc., 138 NLRB 73, decided this day, the
employer also informed the employees about the petitioning union's
position on segregation as well as on union monetary contribu-
tions toward eliminating segregation. In the view of Chairman
McCulloch, and Members Leedom and Fanning again the state-
ment was temperate in tone, germane, and correct factually.
We would be less than realistic if we did not recognize that such
statements, even when moderate and truthful, do in fact cater to
racial prejudice. Yet we believe that they must be tolerated because
they are true and because they pertain to a subject concerning which
employees are entitled to have knowledge-the union's position on
racial matters. As Professor Sovern has pointed out : no one would
suggest that Negro employees were not entitled to know that the
union which seeks to represent them practices racial discrimination 18
So long, therefore, as a party limits itself to truthfully setting forth
another party's position on matters of racial interest and does not
' Cf Paula Shoe Co, Inc., 121 NLRB 673, 675-676.
"Michael I. Severn , The National Labor Relations Act and Racial Discrimination,
62 Colum. L. Rev. 563, 626 ( 1962).
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliberately seek to overstress and exacerbate racial feelings by ir-
relevant, inflammatory appeals, we shall not set aside an election on
this ground." However, the burden will be on the party making use
of a racial message to establish that it was truthful and germane, and
where there is doubt as to whether the total conduct of such party is
within the described bounds, the doubt will be resolved against him.
Viewed against the test set forth above, we find that the Employer's
propaganda directed to race exceeded permission limits and so in-
flamed and tainted the atmosphere in which the election was held that
a reasoned basis for choosing or rejecting a bargaining representative
was an impossibility. It seems obvious from the kind and extent of
propaganda material distributed that the Employer calculatedly em-
barked on a campaign so to inflame racial prejudice of its employees
that they would reject the Petitioner out of hand on racial grounds
alone. This is most readily apparent from the distribution of photo-
graphs showing a Negro man dancing with a white woman, and a
white man, identified in the photograph as James B. Carey, president
of the I.U.E. (which is not the petitioner in this case), dancing with
a Negro woman, to the latter of which was appended a news story
headed : "Race Mixing Is An Issue As Vickers Workers Ballot."
These photographs and the news articles were not germane to any
legitimate issue involved in the election and reinforce our conclusion
that their purpose was to exacerbate racial prejudice and to create an
emotional atmosphere of hostility to the Petitioner.'$
We believe that by the resort to racial prejudice, the Employer over-
stepped the bounds of permissible campaigning and so lowered these
standards that the uninhibited desires of the employees could not be
determined in the election.
Accordingly, we shall set aside the election and direct that a second
election be held.
[The Board set aside the election held July 21,1961.]
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of. the above
Decision, Order, and Direction of Second Election.
37 "The reality is, however , that the setting aside of elections in which an employer has
simply told the truth is a singularly inept way of combatting discrimination " Id at 627.
18 In conjunction with the distribution of Militant Truth , the circulation of the photo-
graphs and the article on "Race Mixing " to employees in two small rural Georgia com-
munities could not help but give emphasis to one of the recurrent messages of that paper,
to the effect that unionism is a foreign , Communist concept with the end objective of
racial intermarriage . It would deny experience to say that this material did not have a
powerful emotional impact upon those to whom it was presented
In a number of cases involving both election contests and unfair labor practices, the
Board has taken a most serious view of the irrelevant , inflammatory , or threatening
appeals to race feeling P D Gwaltney and Company, Inc, 71 NLRB 371 ; Bibb Manu-
facturing Company , 82 NLRB 338 ; Empire Manufacturing Corporation, 120 NLRB 1300;
Petroleum Carrier Corporation of Tampa , Inc, 126 NLRB 1031