ON PETITION FOR REVIEW AND CROSS APPLICATION FOR ENFORCEMENT (Nos. 4-RC-17846 and 4-CA-234586)
BEFORE: BECKER, NYGAARD and LEWIS, Circuit Judges.
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 Section(s) 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, 92 N.L.R.B. 55 (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 deny the petition for enforcement, grant the petition for review, and remand for further proceedings. *fn1
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:
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/ ...