Opinion

Gallenkamp Stores Co. v. National Labor Relations Board

  • 402 F.2d 525
Court
Court of Appeals for the Ninth Circuit
Filed
Aug 8, 1968
Status
Published
Author
Ely
On the bench
Carter, Ely
Cited by
4 cases
Authority
More cited than 18.4%

The opinion

ELY, Circuit Judge

(dissenting in part):

I respectfully dissent from the majority opinion insofar as it holds that there must be a new election. The holding rests upon the majority’s disagreement with the Board’s application of the principle that a substantial campaign misrepresentation fatally corrupts the election process. Numerous definitions of “substantial” have been attempted, but the majority recognizes that false campaign propaganda is not substantial unless it had an impact of such significance that the election “does not reflect the free desires of the employees * * In the circumstances of this case, I believe that our court should respect the expert determination made by the Board. *536 Surely, it cannot be doubted that the Board has a paramount interest in the preservation of the integrity of elections conducted under its own processes, and the Board has not hesitated to set aside elections significantly contaminated by false campaign representations. See, e. g., Grede Foundries, Inc., 153 N.L.R.B. 984 (1965); Coca Cola Bottling Co. of Louisville, 150 N.L.R.B. 397 , 399-400 (1964); Steel Equip. Co., 140 N.L.R.B. 1158 (1963); Hollywood Ceramics Co., 140 N.L.R.B. 221 (1962); United States Gypsum Co., 130 N.L.R.B. 901 (1961); Cleveland Trencher Co., 130 N.L.R.B. 600 , 602-03 (1961).

As I see it, the Board’s decision is entirely supportable. My Brothers emphasize that “[t]he union won the election by only one vote, 38 to 37.” This indicates to me that the “free desires” of at least thirty-seven of the electors were not inhibited by the mistaken literature, and if thirty-seven of the seventy-five closely knit voting employees were not deceived, it is difficult for me to believe that the other thirty-eight were so misled that their votes did not reflect their “free desires.” I have no doubt that the Board was influenced by this consideration, as well as by the fact that the union, only ten or eleven days before the distribution of the supposedly misleading pamphlet, had mailed a leaflet in which the employees were correctly advised. It is unrealistic, I think, to require precise accuracy in campaign literature issued by both employers and unions in elections frequently characterized by vigorous militancy. It should be recognized, as the Seventh Circuit has observed, that “[p] rattle rather than precision is the dominating characteristic of election publicity * * Olson Rug Co. v. NLRB, 260 F.2d 255, 257 (7th Cir. 1958). Since this is so, recognition of the common sense of the workers here involved should lead us to uphold the Board’s decision that “free desires” were not restricted.

I certainly cannot disagree with the majority’s observation that “wages are of paramount importance to employees,” but all of the circumstances which are present here, including the history of the long dispute and the nature of the working environment, do, in my opinion, provide a solid, logical foundation for the Board’s rejection of the contention that the electors were deceived about a fact in which their interest was “paramount.”

The history of the present dispute emphasizes a principal reason why the courts should not, as the majority has here done, give so little weight to a decision made by an expert body upon conflicting facts ánd inferences. The representation petition was filed in December 1964, and the election was conducted on April 7,1965 — over three years ago. The contesting parties, as well as the Government, have doubtless incurred much expense. Now the antagonisms must be revived, and the policy behind the National Labor Relations Act, that of the speedy resolution of labor disputes, is unnecessarily subverted.

As long as our court substitutes its judgment for that of the Board in cases such as this, we may expect to be confronted with an increasing number of the kind of problems with which our court should not be burdened.

I j would enforce the order of the Board.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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