letters and speeches merely equated civil rights, economic opportunity, and personal dignity, and union sought to alter workers’ perceptions that unions were opposed to civil rights movement
How later courts described this case
- letters and speeches merely equated civil rights, economic opportunity, and personal dignity, and union sought to alter workers’ perceptions that unions were opposed to civil rights movement
- appeals by civil rights leaders linking civil rights to unionization were a “legitimate tactic” because they were “clearly not for the purpose and could not have had the effect of exacerbating racial prejudices”
- Union won by 96 to 46
Written by the judges who cited it.
The opinion
BOREMAN, Circuit Judge
(dissenting):
Most respectfully I submit this statement of my disagreement with the decision of the majority.
The disturbing question is whether the pre-election racial references made by agents and representatives selected by and acting on behalf of the Union exceeded the permissible propaganda limits which the Board has had occasion to delineate and concerning which this court has spoken.
In Sewell Manufacturing Company, 138 N.L.R.B. 66 , the Board considered objections to an election based upon the employer’s pre-election propaganda touching upon racial matters. There the Board said:
“ * * * in election proceedings it [the Board] seeks ‘to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to 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.
******
“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 informed exercise of the franchise, free not only from interference, restraint, or coercion violative of the Act, but also from other elements which prevent or impede a reasonable choice.” (pp. 69-70.)
Further, in Sewell, the Board recognized the fact that prejudice based on color is a powerful emotional force and that a deliberate appeal to such prejudice is not intended or calculated to encourage the reasoning faculty. The statement was there made that the Board did 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.
It is particularly noted that the statements and declarations of the Board in Sewell were made with respect to the employer’s efforts to inject irrelevant and inflammatory racial issues into the election campaign. In N.L.R.B. v. Schapiro & Whitehouse, Inc., 356 F.2d 675 (1966), this court, speaking through Judge Bryan and approving Sewell, refused to enforce the Board’s order which, in effect, upheld the results of an election favoring the union where the union had distributed pre-election leaflets which this court found to be irrelevant to the election issues and racially inflammatory.
In the instant case 134 out of 144 employees at Baltimore Luggage were Negroes and at the meeting arranged by the Union on the eve of the election some 50 to 75 of the employees were in attendance, all Negroes. The two principal speakers were Negroes, one a minister who had exhibited an active interest in the civil rights movement, and the other an active representative of the NAACP. Several days prior to the meeting the Union had distributed a letter, signed by Dr. Lillie M. Jackson, written on the stationery of the Baltimore Branch of the National Association for the Advancement of Colored People, in which she purported to speak for those in the Baltimore Branch of that organization. She urged the workers to vote for the union and in explaining her reasons *750 she said: “Our sympathies are with the labor movement because they have demonstrated that they are our friends and have helped us in our civil rights struggles. They have marched with us in Washington and from Selma to Montgomery. The wife of a Union official gave her life in our cause.”
The Negro minister who spoke at the meeting recounted his experience when he had gone, in his boyhood, to the back door of the home where his mother was employed and was there fed. Undoubtedly everyone understood that the home was that of a white woman. He stated frankly and “advisedly” that he was glad that the mistress of the house was gone and, in effect, that she would be very much upset if he were to come to her home again because he could no longer in good conscience go to her back door and eat as he once did and she would be very disappointed and upset if he went to her front door.
Particularly objectionable was the election eve speech of NAACP representative Cross. The speech as reconstructed indicates that portions of it were expressly designed and intended to inflame the racial passions of those voters present. He began by announcing that he was speaking in the place of another NAACP representative who was required to go to Mississippi because a Negro civil rights worker had been fired from his job. He thus set the racial tone of his talk by this first reference to a civil rights incident totally unrelated to the Baltimore Luggage election or the Union itself. Then, after making a statement apparently aimed at showing the importance of organization, he stated:
“ * * *. As a member of the NAACP I think that I could not speak to you without reminding you of some of the work of our great freedom fighters. I will try to tell you about two of them. One is Medgar Evers and the other is Viola Liuzzo. Mr. Evers was born in Mississippi and was educated there and as he grew up as a young man he realized that there were certain things that were not opened to him. As he grew older however, our country went to war, and he was called over seas to fight for our country. While he was over there he had to go before rifles fire, before bombs and everything, as the American fought against the tyrants of Europe and the different tyrants of the Pacific. But, he lived through it to return to his home state of Mississippi and while he was there when he returned he found out that the same tyranny which he was fighting in Europe was there in Mississippi that he decided to work against it. And through his work with the NAACP he became one of the most influential field secretaries. But we all know what happened to him while he did his work. One night when he came home from doing his work in the fields. As he got out of his car to go home he was shot in the back. Now when Evers decided to do this work he realized that what he was doing was putting his family and his friends in great jeopardy. But he depided to do it all the same. And so gave his life for the movements. And another member was Mrs. Viola [Liuzzo] who I’m sure you all read about in your magazines and so on. She was a housewife from Detroit. Her husband is a laborman. And she went to Alabama to do her part to fight for social economic justice for all Americans black and white. And while she was there unknown to her she was being followed and was finally killed. I think that as she died she might have said T have done my part for America,’ and that is what I would like to ask you tonight. Have you done your part ? * *
These references to the violent deaths of two civil rights martyrs were certainly not germane to the election issues and were calculated to be highly inflammatory. Directed as they were to the Negro employees, the remarks could only arouse *751 emotions and inflame racial feelings. This intemperate appeal had the effect of bringing the election into an improper perspective, namely that the election about to be held was an integral part of the civil rights struggle of the American Negro. Cross drove this point home when, after referring to the part that Mrs. Liuzzo played in the movement, asked the workers whether they had done their part. Similarly, his intemperate references to fire hoses, dogs, and the Ku Klux Klan were obviously intended to incite and inflame the racial feelings of his listeners. The mere mention of these symbols of racial hostility, toward those engaging in civil rights demonstrations, even though negatively stated, were to be condemned because of their inflammatory character and total irrelevance to the' Baltimore Luggage situation.
The Board, in its decision, and my brothers who now speak as a majority, assert various reasons as to why the Union’s racially oriented propaganda did not overstep the permissible bounds. In short substance, the reasons assigned are that the propaganda in question merely consituted an appeal to solidarity through the Union in order to achieve for the Negro employees the economic equality which, it is contended, has long been denied to Negroes generally. It is thus permissible, they 'argue, that the Union propaganda should equate an election victory with the civil rights struggle because economic opportunity is one of the basic aims of the civil rights movement and reference to that movement is therefore germane to the election. These arguments, however, fail to heed this court's express admonition in N.L.R.B. v. Schapiro & Whitehouse, Inc., supra, that the question of “[e] quality of race in privilege or economic opportunity” was not an issue in the election and the fact that “a majority of the employees were Negroes did not make it so. * * *. The reliance upon race inhibited a ‘sober, informed exercise of the franchise’ and was altogether out of place.” 356 F.2d at 679 .