Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-1997

Bro-Tech Corp v. NLRB
Precedential or Non-Precedential:

Docket 95-3343,95-3399




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                     Nos. 95-3343 and 95-3399
                           ___________

                   BRO-TECH CORP., t/a Purolite
                          Petitioner No. 95-3343,

                                  v.

                  NATIONAL LABOR RELATIONS BOARD
                          Respondent.
                            ___________


                  NATIONAL LABOR RELATIONS BOARD
                                Petitioner No. 95-3399,

                                  v.

                BRO-TECH CORPORATION, t/a PUROLITE,
                                 Respondent.

                           ___________

                   ON PETITION FOR REVIEW AND
                CROSS APPLICATION FOR ENFORCEMENT

                (Nos. 4-RC-17846 and 4-CA-234586)
                           ___________

                       ARGUED JUNE 27, 1996

      BEFORE:   BECKER, NYGAARD and LEWIS, Circuit Judges.

                     (Filed January 31, 1997)
                           ___________


Stephen J. Cabot, Esq. (ARGUED)
Harvey, Pennington, Herting & Renneisen
1835 Market Street
Eleven Penn Center, 29th Floor
Philadelphia, PA 19103

          Attorney for Bro-Tech Corp. t/a Purolite

Aileen A. Armstrong, Esq.
Richard A. Cohen, Esq. (ARGUED)
National Labor Relations Board


                                  1
1099 14th Street, N.W.
Washington, DC 20570-0001

          Attorneys for National Labor Relations Board

                             ___________

                         OPINION OF THE COURT
                             ___________



BECKER, Circuit Judge.

          Bro-Tech Corporation t/a Purolite ("Purolite")

petitions for review of orders of the National Labor Relations

Board ("Board" or "NLRB"): (1) certifying Local 107 of the

International Brotherhood of Teamsters as the collective

bargaining representative for certain of Purolite's employees;

and (2) finding that Purolite engaged in an unfair labor practice

by refusing to recognize and bargain with the union in violation

of § 8(a)(5) of the National Labor Relations Act.    Purolite seeks

to invalidate the certification of the election results and the §

8(a)(5) order on the ground that the union engaged in prohibited

campaign practices under the Board's theory of campaign speech

announced in Peerless Plywood Co., 107 N.L.R.B 427 (1953), and

Alliance Ware, 

(1950), and that the Board acted
arbitrarily in failing to set aside the election under the

authority of those cases.    The Board has cross-petitioned for

enforcement of its orders.    Because we conclude that the Board

has neither adequately reconciled its decision in the present

case with the theory of campaign speech announced in Peerless

Plywood, nor created, with adequate explanation, a new theory of

campaign speech to replace the Peerless Plywood rationale, we



                                  2
deny the petition for enforcement, grant the petition for review,

and remand for further proceedings.1

                                I.

                                A.

          Local 107 (“the Union”) petitioned the Board to

represent the production, maintenance, warehouse, and laboratory

employees of Purolite.   Pursuant to a stipulated agreement, the

Board conducted an election by secret ballot on July 17, 1992.

Employees cast their votes in the plant's ground floor conference

room, which we will refer to as the voting room.

          On the day of the election, the Union parked a truck

equipped with loudspeakers across the street from the plant.

From 7:00 a.m. to 4:30 p.m., the truck broadcast taped music with

pro-union lyrics.   Certain witnesses testified that the music

blared throughout the plant, except the so-called Cation plant

and the voting room.   Other witnesses testified that, when the

doors were open, they could hear the songs inside the voting

room.

          Because the tenor of the lyrics is so important to the

resolution of the case, we recite the words of the songs:

               First song:

1. Purolite also made a charge of improper electioneering based
upon the testimony of witnesses Angelo Siano and Jose Mercado
about certain representations that Union observer Sammy Santana
allegedly made to several employees. The Hearing Officer
rejected this testimony, finding both Siano and Mercado
unreliable. Instead, the Officer credited the testimony of the
Board's observer DeNio, whose version was favorable to the Union.
 The Board adopted the Hearing Officer's report in this respect.
 The Board's finding is supported by substantial evidence, and we
will neither disturb it nor discuss it further herein.



                                3
Throughout North America
               you see us on the job
               from Atlanta to Calgary
               Vancouver to Cape Cod

You can't tell us by our color
               you can't tell us by our hat
               we're the backbone of the country
               we take pride in being that

We're brothers and we're sisters
working hard for what is fair
you can always tell a Teamster
by that certain pride he wears

               Meeting all the challenges
               united we stand tall
               Proud to be a Teamster
               that's why we'll never fall

               We are the North Americans
               from sea to shining sea
               we backed our country in the fight
we earned the right to be

When FDR put out the call
we kept him rolling through it all
we are the workers who stand united
we're Teamsters one and all

We're carving out a better life
for our loved ones old and young
we're giving them the melody
the song that's not been sung

In a moment of reflection
I close my eyes and see
the dreams our fathers had for us
are now reality

               Second song:

Let's hail the Teamsters Union and sing of it with pride
Remember Teamster members, your Union's by your side

As long as we're together, our numbers will increase
and this will be our motto: prosperity and peace

Now all for one and one for all is something you have heard
But when the Teamsters say it, the boys mean every word

So hail the Teamsters Union and shout it loud and clear
The Brotherhood of Teamsters will always be right here . . .



                               4
          When the election was completed, the Union's margin of

victory was five votes.2

                                 B.

          Purolite filed nine objections to the Union’s conduct

allegedly affecting the results of the election.     Following an

investigation, the Regional Director recommended that all but two

of Purolite's objections be overruled without a hearing.     The two

remaining objections involved the Union's use of the sound truck

and allegations that the Union observer engaged in improper

electioneering.   The Regional Director determined that, because

these two objections raised substantial material issues of fact,

a hearing was necessary to determine whether the use of the sound

truck violated the rule promulgated in Peerless Plywood Co., and

whether Santana's conduct constituted improper electioneering in

the polling area in violation of the rule of Milchem Inc., 

(1968).    

n.1.   The Board adopted the

Regional Director's Report and Recommendations.

          After conducting three days of hearings, the Hearing

Officer issued a Report and Recommendations on Purolite's two

remaining objections.    As to the Union's use of the sound truck,

the Hearing Officer first considered whether the songs

constituted campaign speech, writing:
[T]he songs broadcast into the plant on the day of the
          election were no different than a speech
          because the lyrics of these songs include
          campaign phrases such as “the brotherhood of
2. Purolite challenged the validity of two votes; however, these
votes were insufficient to change the outcome of the election.



                                 5
            Teamsters will always be right here;” ... .
            These messages, although sung and accompanied
            by music, are clearly emotional appeals to
            sway voters in favor of the Petitioner by
            telling the voters how the Petitioner will
            benefit them if elected. ... These lyrics
            contain significantly more meaning and are
            more characteristic of a speech than is the
            mere repetition of a slogan to vote for the
            Petitioner accompanied by music, which the
            Board determined not to be a campaign speech
            in Crown Paper Board, 

.
            Although the songs contained no specific
            mention of the Employer, or any campaign
            issue, the message behind the lyrics is
            clear: The Petitioner, if elected, will be
            "working hard for what is fair" and "carving
            out a better life," bringing "prosperity and
            peace." ... Often, last minute campaign
            speeches do not focus on any specific issue
            but are more generalized themes of how voting
            for a particular party will benefit the
            employees. Such is the case here.


            The Hearing Officer then recommended that Purolite's

first objection be sustained because the sound truck broadcasts

violated the Board's Peerless Plywood rule against holding

captive audience speeches within twenty-four hours of the

election.    However, the Officer rejected Purolite's alternative

argument advanced in its post-hearing brief that the songs

violated the Board's rule, which it announced in Alliance Ware,

against electioneering at or near the polling place.    In that

regard, she found that "there [wa]s no evidence that employees

were waiting in line to vote in th[e] corridor [outside the

voting room] where the broadcast was heard," and that "the record

is clear that the broadcast could not be heard within the polling

areas [itself]."

            The Board adopted most of the Hearing Officer's Report

and Recommendations, but rejected her conclusion that the sound


                                 6
truck broadcasts constituted campaign speech.    Instead, the Board

concluded that the songs are "more similar to appeals to vote set

to music," which the Board had previously determined to be

unharmful in Crown Paper Board, 

(1966).

According to the Board, the songs "do not make any specific

campaign promises; do not address wages, hours, terms or

conditions of employment or other collective bargaining issues;

do not refer in any way to the Employer; and indeed, do not

contain specific appeals to vote in favor of Petitioner."      As

such, "[t]hese phrases do not convey the type of message that

requires a response or rebuttal from the employer," and the

Union's broadcasts of the songs thus did not violate the Board's

rule against campaign speech to a captive audience within 24

hours of an election.    Based on its characterization of the

songs, the Board also rejected Purolite's argument that the songs

constituted improper electioneering "at or near the polls.”      A

certificate of representation was then issued.

            Despite the Board's decision, Purolite refused to

negotiate with the Union.    In response, the Union filed an unfair

labor practice charge with the Board.    Purolite admitted its

refusal to bargain but challenged the validity of the Board's

certification of the Union.    Following motions for summary

judgment, the Board concluded that Purolite's refusal to bargain

with the Union violated § 8(a)(1) and (5) of the National Labor

Relations Act, 29 U.S.C. § 158(a)(1) & (5).    This appeal

followed.   The Board had jurisdiction over the unfair labor

practice charge under 29 U.S.C. § 160(a) & (b).    We have


                                 7
jurisdiction to review the Board's decision under 29 U.S.C.

§ 160(e) & (f).

                                 II.

            Our authority to review an order of the NLRB is

limited.    "If the Board adopts a rule that is rational and

consistent with the Act, then the rule is entitled to deference

from the courts.    Moreover, if the Board's application of such a

rational rule is supported by substantial evidence on the record,

courts should enforce the Board's order."      District 1199P,

National Union of Hospital and Health Care Employees v. NLRB, 

, 1101 (3d Cir. 1989) (quoting Fall River Dyeing &

Finishing Corp. v. NLRB, 

, 2235 (1987)); see also

NLRB v. Joy Techs., Inc., 

, 107-08 (3d Cir. 1993).

Deference to the Board, however, is not automatic but depends

"substantially on the persuasiveness of the agency view."        Local

825, Int’l Union of Operating Eng’rs v. NLRB, 

, 460

(3d Cir. 1987).

            Where the review is not a question of fact, “but of a

judgment as to the proper balance to be struck between

conflicting interests, ‘[t]he deference owed to an expert

tribunal cannot be allowed to slip into a judicial’ inertia which

results in the unauthorized assumption by an agency of major

policy decision properly made by Congress.”     

v.
Brown, 

, 988 (1965)).      In order to persuade the court

in these situations, the Board must provide the “reasons for its

actions" in addition to "sufficient factual findings to support

them."     Local 467, Upholsterers' International Union of North


                                  8
America v. NLRB, 

, 182 (3d Cir. 1969); see also

Atchison, Topeka, & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 

, 807 (1973) (The "arbitrary and capricious" standard of

review requires that an "agency [] set forth clearly the grounds

on which it acted."); Local 825, Int’l Union Operating 

("A position without reasoning has little power

to persuade."); NLRB v. Auciello Iron Works, Inc., 

,

813 (1st Cir. 1992) (quoting Northport Health Servs., Inc. v.

NLRB, 

, 1553-54 (11th Cir. 1992) (“A court may

require that the Board’s decision be supported by articulate,

cogent and reliable analysis.”).

          Additionally, where, as here, the Board has reversed a

Hearing Officer's findings in its decision, the Board must offer

some explanation for the reversal before the court of appeals

will defer to its determinations.   See Alabama Ass’n of Ins.

Agents v. Bd. of Governors of the Fed. Reserve System, 

, 247 (5th Cir. 1976) (Board's findings are vulnerable "where

it merely announces an opposite conclusion from the [ALJ] without

explanation”); ITT Continental Baking Co. v. FTC, 

,

219 (2d Cir. 1976) (when agency departs from the ALJ's findings

"it must explain why"); Greater Boston Television Corp. v. FCC,

, 853 (D.C. Cir. 1970) ("agency's departures from the

Examiner's findings are vulnerable if they fail to reflect

attentive consideration to the Examiner's decision"); cf.

Zeiglers Refuse Collectors, Inc. v. NLRB, 

, 1008 (3d

Cir. 1981) (quoting Eastern Eng'g & Elevator Co. v. NLRB, 

, 197 (1980)) (Board's decision may be less "substantial"



                               9
when an "impartial experienced examiner who has observed the

witnesses and lived with the case has drawn conclusions different

from the Board's ... .").

          An additional consideration informs our application of

the deference principle in the elections context: the Board acts

in this context with scant direction from Congress.      Congress has

said no more than that elections must be "fair" and free of

"interfere[nce], restrain[t], [and] coerc[ion]."    See 29 U.S.C.

§§ 158-160.   The Board has been asked to translate these

guideposts into practical rules of election procedure.      See,

e.g., General Shoe Corp., 

(1948).     Considering

the limits of Congress's constitutional power to delegate its

authority, it gives us pause when the Board acts legislatively

without clear Congressional direction unless there is rigorous

judicial review.

          The line-drawing that the non-delegation doctrine

requires has kept the Supreme Court from enforcing it.      See

Mistretta v. United States, 

, 415 (1989) (Scalia, J.,

dissenting) ("But while the doctrine of unconstitutional

delegation is unquestionably a fundamental element of our

constitutional system, it is not an element readily enforceable

by the courts.").   We believe, however, that when the

circumstances we have described herein operate together, we have

an especial right to insist on rigorous, reasoned NLRB decision

making.   The Board has not supplied such decision making here.



                               III.


                                10
                                  A.

             In Peerless Plywood, the NLRB prohibited both employers

and unions "from making election speeches on company time to

massed assemblies of employees within 24 hours before the

scheduled time for conducting an 

.

 The Board felt compelled to limit preelection campaigning in

these circumstances because experience had demonstrated that last

minute speeches delivered to massed assemblies tended "to create

a mass psychology which overrides arguments made through other

campaign media and gives an unfair advantage to the [speaking]

party," and "to destroy freedom of choice and establish an

atmosphere in which a free election cannot be held."     

30.   In an attempt not to circumscribe overly the free speech

interests of employers and unions, the Board also noted that the

Peerless Plywood rule does not prohibit the use of "any other

legitimate campaign propaganda or media," or even the delivery of

speeches within 24 hours of an election on or off the premises

provided "employee attendance is voluntary and on the employees'

own time."    

             The NLRB has since applied the Peerless Plywood rule to
limit the use of sound trucks as well as assembly speeches. In

United States Gypsum Co., 

(1956), the Union used

a sound truck to broadcast campaign speeches over a 7 1/2 hour

period the day before the election.     While the Board noted that

Peerless Plywood was usually applied to a group or assembly of

employees gathered together for the purpose of hearing a speech,

it concluded that "the critical factor in this regard is not the


                                  11
location of the speaker but whether the employees are exposed to

his remarks."    

  Because the sound truck broadcast

triggered the same considerations operative in establishing the

Peerless Plywood rule, the Board determined that the Union's

conduct had "destroy[ed] the freedom of choice of the employees,"

and set aside the election.    

Paper Board Co., 

(1966), the

Union used a sound truck to broadcast during a change of shifts

"vote for Local 286" interspersed with music.     The Board

distinguished both Peerless Plywood and Gypsum, and determined

that this use of the sound truck was permissible.     The Board

first emphasized that, because most employees were not on company

time when they were exposed to the broadcasts, Peerless Plywood

was inapplicable.    

  The Board then distinguished

Gypsum on several grounds, namely that the broadcast in Crown

Paper Board was "only an appeal to vote ... with musical

interludes," as opposed to a speech; the broadcast lasted "about

an hour," and not all day; and most employees heard the broadcast

while arriving or departing from work, and not on company time.

  Finally, the Board specifically addressed the

concerns expressed in Peerless Plywood, concluding that, while

the "Union's repetition of a voting slogan and its music may have

been `blaring,' `cacophonous,' or even likely to `befoul' the

plant `with a babble of commercials and public cheerleading,'"

the messages were not the type of messages that would influence

voters by creating a mass psychology that overrides other

arguments.   

                                   12
                                 B.

            The overarching question in this case is whether the

songs played by the Teamsters constitute prohibited campaign

speech.    The Board determined that they were not.   If the Board

had adequately explained how its decision can be reconciled with

the Peerless Plywood theory of "campaign speech," or, to the

extent that it cannot, what the analytical basis is for the new

theory that supports the Board's decision, we would be

constrained to defer to the Board's judgment and enforce its

order.    But the Board has given no such explanation(s).

            We must first consider the Board's decision itself,

which, unless we are missing something, is one whose reasoning

fails to withstand scrutiny.    The Board's seminal Peerless

Plywood decision was driven by a concern that the mass psychology

created by campaigning tends to interfere with the "sober and

thoughtful choice which a free election is designed to reflect".

Peerless 

.     The Hearing Officer, who

observed the witnesses and lived with the case, found that test

met, concluding that the Teamsters’ songs constituted “emotional

appeals to sway voters” and as such were “no different than a

speech.”

            Despite the Officer’s findings, the Board reversed her

decision and certified the election.     Although expressly adopting

the Officer’s credibility findings and acknowledging that the

sound truck broadcasts were audible within the plant throughout

the day, the Board reasoned that:     “Contrary to the [H]earing


                                 13
[O]fficer, we find that the Teamsters songs are more similar to

appeals to vote set to music, which have been found not to

violate the Peerless Plywood prohibition.”     According to the

Board, the songs did not constitute campaign speech because they

did "not make any specific campaign promises," and therefore did

“not convey the type of message that require[d] a response or

rebuttal from the employer.”     When faced with the rationale

underlying Peerless Plywood, the Board peremptorily stated “the

broad and amorphous quality of the lyrics would not create the

type of ‘mass psychology’ that concerned” the Peerless Plywood

Board.     As we see it, in doing so, the Board abandoned without

explanation any standard conception of campaign speech it had

previously articulated.

             Like the Hearing Officer, we believe that the songs at

issue clearly fall under the Board's rationale in Peerless

Plywood.    Referencing the lyrics set forth supra at 5-6, we

cannot imagine what would more create "mass psychology" that

"tend[s] to interfere with that sober and thoughtful choice which

a free election is designed to reflect" than these lyrics, which,

especially when set to music, appeal to the most visceral

emotions of the workers.     That rhetoric is at least as likely and

probably more likely to induce "mass psychology" than a dry

speech addressing specific campaign issues, even wages and hours.

 If modern political campaigns have taught us anything, it is

that this type of emotional rhetoric has a heavy impact upon the

voter.     It certainly warrants no less a response from the

employer than more specific campaign rhetoric.     While we may not


                                  14
substitute the Board’s conclusion with our own, even though we

find the Board’s conclusion to be illogical, we can at the least

require that the Board do more than discard its Peerless Plywood

doctrine without explanation.

          The Board's failure to distinguish the precedent of

Peerless Plywood engenders greater concern when viewed as part of

the Board's total jurisprudence in this area.     As reflected by

our previous description of the Peerless Plywood case law, the

Board has chosen to develop union election law through ad hoc

adjudication.    We recognize that the Board generally retains this

discretion.     See SEC v. Chenery Corp., 

, 203 (1947).

 But it is especially unfortunate when the Board puts forth such

a patchwork of adjudications without adequate rationalization,

thereby abandoning potential litigants inside a maze of decisions

with no means to map an exit.    In the end, Peerless Plywood, 

(1950), United States Gypsum, 

(1956), Crown Paper, 

(1966), and now this case,

create exactly this peril.

          The Board defends its decision in part by asserting its

congressional mandate to establish the rules in this area.     We do

not question this mandate.    But, as we have noted, in fashioning

a new rule, the Board's authority is not without boundaries.     The

Board may not, by ipse dixit, simply issue new rules (or
"interpret" its old ones) without explaining the reason for their

issuance (or reinterpretation).     See Atchison, Topeka & Santa Fe

.     In light of its disregard for the Hearing

Officer's findings and its departure from the Peerless Plywood



                                  15
rule, the Board must explain itself in order to obtain the

deference that it seeks.

          The Board, therefore, had two options in approaching

this case:     it could have (1) explained how its decision to make

the existence of specific campaign issues the dispositive issue

in this case is consistent with the Peerless Plywood rationale;

or (2) with adequate explanation, created a new theory of

campaign speech to replace the Peerless Plywood rationale.     It

did neither.    For this reason, and in order to provide the Board

with the opportunity to satisfy this standard, we will deny the

petition for enforcement, grant the petition for review, and

remand for further proceedings.

                                 IV.

          Purolite's alternative argument is that, because the

broadcasts could be heard directly outside the voting room and

inside the room when the door was open, the broadcasts violated

the rule established in Alliance Ware, 

(1950),

and, therefore, the Board's failure to apply Alliance Ware

amounts to an abuse of discretion.     See Industrial Acoustics Co.
v. NLRB, 

, 722 (4th Cir. 1990) (holding that the

failure to apply Peerless Plywood rule without abandoning it

constitutes an abuse of discretion).

             In Alliance Ware, a sound truck broadcast

"electioneering material" across the street from the employer's

parking lot.     Although there was no evidence that the sound truck

broadcasts were audible inside the plant or in the voting room

itself, all employees entering the plant could hear them.    After


                                  16
considering the employer's objection, the Board set aside the

election, explaining that:
The sole question is whether the electioneering
          conducted by the Petitioner by means of the
          sound truck was "at or near" the polling
          place. We believe that it was. The
          determining factor is not the linear distance
          from the sound truck to the employees'
          entrance or the polling place, but the
          immediacy of the voice of the electioneering
          broadcaster to the eligible voters as they
          approached the polling place ... .

          In the case at bar, the Hearing Officer concluded that

Alliance Ware was inapplicable because "there is no evidence that

employees were waiting in line to vote in this corridor where the

broadcast was heard, and the record is clear that the broadcast

could not be heard within the polling areas."   Had the Board

based its decision exclusively upon the Hearing Officer's

conclusion, we would be compelled to grant review and deny

enforcement outright for, in Alliance Ware, the Board found that

the facts that workers were not waiting in line and that the

broadcast could not be heard in the polling place were

irrelevant.

          The Board, however, found Alliance Ware inapplicable
based upon different reasoning. According to the Board:
For the same reasons that we do not find the [Union's]
          conduct objectionable under Peerless Plywood,
          we find no merit in the Employer's argument
          that the [Union's] broadcast of the Teamsters
          songs constituted improper electioneering "at
          or near the polls" under Alliance Ware, 

(1950). In addition, we find it
          significant that although Alliance Ware is a
          soundcar case, it predates Peerless Plywood
          and the Board's application of the Peerless
          Plywood rule in soundcar cases.



                               17
Bro-Tech Corp., 

, 1015 n.7 (citations omitted).

 Purolite submits that because Alliance Ware defines "at or near

the polls," and Peerless Plywood defines campaign speech, the

inquiries are clearly distinct.    We are less certain; as is

evident, the reasoning in this case defies easy explanation.      In

contrast, counsel for the Board argues that the Board simply

overruled Alliance Ware as incompatible with Peerless Plywood.

That too is far from clear.   The Board’s decision here appears to

adopt or recognize the same definition for campaign speech and

electioneering in the context of sound trucks.    But if

electioneering deserves more protection than campaign speech, as

it may, then the status of Alliance Ware after Peerless Plywood

and the decision in this case is a mystery.

          Because of our disposition of the Peerless issue, we

have no need to reach the Alliance Ware issue.    But as the

discussion in Part III as well as this Part IV suggest, the

Board’s law in this area is in a state of confusion.    We will

leave the Alliance Ware issue to the Board on remand, but we

suggest that this area of Board law could benefit from

thoroughgoing review and clarification.

                                  V.

          For the foregoing reasons, the Board's Petition for

Enforcement will be granted in part and denied in part, and the

petition for review will be granted in part and denied in part.




                                  18
 The case will be remanded to the Board for further proceedings

consistent with this opinion.3




3. Purolite has argued that it was entitled to an evidentiary
hearing for its objection that the totality of the circumstances
required an new election. With election challenges, however, a
party is only entitled to an evidentiary hearing if the challenge
raises "substantial and material factual issues." NLRB v. ARA
Services, Inc., 

, 67 (3d Cir. 1983) (in banc); St.
Margaret Mem’l Hosp. v. NLRB, 

, 1156 (3d Cir. 1993).
 We leave it to the Board to determine on remand whether an
evidentiary hearing on the "totality" issue is in order.



                                 19