The May 1997 Employment Law Alert reported on the Third Circuit’s January 31, 1997 decision in Bro-Tech Corp., 105 F.3d 890. The Court rebuked the NLRB, declaring that “the Board’s law in [the election campaign] area is in a state of confusion.” The case went back to the Board with instructions to undertake a “thoroughgoing review and clarification” of its election campaign rules. Upon reconsideration, the Board abandoned its earlier decision favoring Teamsters Local 107, 330 NLRB No. 7 (November 18, 1999). The Board’s retreat saves its traditional Peerless Plywood 24-hour ban on pre-election speeches from destruction by an ill-advised exception.
For nearly a half-century, the Board’s decision in Peerless Plywood, Co., 107 NLRB 427 (1953), has guided employers and unions through the final stages of election campaigns. That decision and its companion case, Livingston Shirt Corp., 107 NLRB 400 (1953), permitted employers to give in-plant captive-audience speeches to employees without giving unions access to the employer’s plant for a response. However, the Board prohibited both employers and unions alike “from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election.” That new 24-hour rule had to be obeyed because any violation, standing alone, constituted objectionable conduct sufficient to warrant setting aside an election victory.
Teamsters Local 107 assaulted the Peerless Plywood 24-hour rule directly and flagrantly. At 7 a.m., 45 minutes before the polls opened, a union sound truck parked on the street immediately outside the plant began blaring taped music. Eight songs played over and over for nine and one-half hours, ending only when the polling hours ended at 4:30 p.m. Six songs were popular melodies, including “The Twist” and “When the Saints Go Marching In.” Two of the eight endlessly-repeated songs played at high volume were unabashed pro-Teamster songs. Approximately 50 of the 424 eligible employees “could not avoid hearing the sound truck” and, indeed, several employees remembered hearing only the pro-Teamster songs, not the six popular tunes.
This should have been an easy Peerless Plywood case. Another early Board decision, U.S. Gypsum Co., 115 NLRB 734 (1956), applied the Peerless Plywood rule to cancel a union’s election victory because a union sound truck had broadcast union campaign speeches for seven and one-half hours, including time periods within the sacrosanct 24-hour pre-election period. Indeed, the Board’s hearing examiner applied U.S. Gypsum, a sound truck case, to sustain the employer’s objection and recommended setting aside the narrow Teamster election victory.
The Board disagreed. A unanimous panel, of Chairman Gould and Members Devaney and Stephens created a strange exception to the traditional Peerless Plywood rule, 315 NLRB 1014 (1995). The pro-Teamster songs, the Board said, were not “campaign speech” at all but only “musical appeals to vote.” By declaring this a music case rather than a campaign speech case, the Board sought refuge within Crown Paper Board Co., 158 NLRB 440 (1966). I n that case, the Board held that a union sound truck broadcasting general music interspersed with “vote for Local 286” messages for one hour during the 24-hour pre-election period when employees were changing shifts did not violate Peerless Plywood.
The Third Circuit agreed with the hearing examiner and reversed the Board. The court suggested that pro-Teamster lyrics set to music might appeal more “to the most visceral emotions of the workers . . . than a dry campaign speech addressing campaign issues, even wages and hours.” On remand, a unanimous Board panel consisting of Chairman Truesdale and Members Fox and Hurtgen threw in the towel and held that this Teamster sound truck musical campaign indeed violated Peerless Plywood and required the July 17, 1992 election (originally won by the Teamsters 35 to 30) to be rerun eight years later.
The Board acknowledged two basic flaws in its earlier decision. First, Peerless Plywood, although frequently referred to as a “captive audience” rule, is not limited to speeches delivered to “massed assemblies of employees.” U.S. Gypsum, the original sound truck case, pointed to the correct analysis. The critical element is not the location of the speaker. The speaker can be anywhere, even outside the plant. The critical element is “whether the employees are exposed to his remarks.” Thus, messages over a plant’s public address system would be covered even though the employees are not gathered together in one place but continue working at their workstations. In this case, the union’s musical campaign “was clearly audible to anyone entering the employer’s premises and carried into a number of the employee workstations throughout the facility.” Many employees testified they heard the music and the pro-Teamster messages.
The second flaw in the earlier Board decision was classifying this “prolonged broadcast of pro-Teamster songs” as “mere musical appeals to vote . . . with musical interludes” as in Crown Paper Board. The 1999 Board decision, in deference to the Third Circuit’s rebuke and remand, found instead “that the partisan content of the songs is sufficient to place it within the realm of campaign speech under Peerless Plywood.” The case changed back from a music case to a campaign speech case. The Board then emphasized its re-affirmation of Peerless Plywood by declaring that “lyrics to a pro-Teamster song, a nonmusical partisan oration, or a dry recitation encouraging support for a particular electoral choice . . . all fall within the broad rubric of campaign speech within the proscription of Peerless Plywood.” Since Crown Paper Board had approved general music interspersed with forbidden “vote for the union” messages, the 1999 Board overruled that decision to that extent.
This union’s high-volume sound truck musical campaign “unwillingly exposed” the plant’s workers to campaign messages for the Teamsters turning them into “a captive audience within the meaning of Peerless Plywood.” As noted in our May 1997 article, the earlier Board decision sanctioning “musical appeals to vote” created an enormous loophole. Employers and unions could rush out to hire sound trucks or disc jockeys or buy air time on a popular local radio station to air their own specialized “musical appeals to vote.” Two out of every eight minutes could be devoted to pro-employer or pro-union musical commercials resulting in a deafening media blitz in the critical hours before election day. By redesignating such musical appeals as the campaign speech they are, the Board prevented the Peerless Plywood rule from being swallowed by an ever-widening musical exception.
The Board may have gotten a glimpse of the future in Eby-Brown Co., 328 NLRB No. 75 (May 26, 1999). That glimpse, like Scrooge’s vision of his own future in A Christmas Carol, could have revealed the folly of its earlier Bro-Tech decision. In Eby-Brown, employees could access the plant’s intercom by dialing a telephone number. Between 8 to 14 hours before an election that the company won by the narrow margin of 51 to 45, up to 50 separate intercom announcements were made by various employees, including plant management, urging a vote for the company and several other intercom announcements were made urging a vote for the union. A Board majority of Chairman Truesdale and Member Fox, over a dissent by Member Hurtgen, rejected objections based on this intercom use, citing Bro-Tech.
Peerless Plywood would quickly disappear if it only covered employer addresses to “massed assemblies” of workers. Union (and employer) sound trucks could bombard a plant with musical campaigns. Employees could make endless announcements over a plant’s intercom or public address system urging support for their particular side. Employees, the employer and possibly even the union could send mass e-mails to every eligible voter’s workstation. The 1999 Board finally realized “uninvited mass messages” are at the heart of the Peerless Plywood rule. Employers (and unions) can still invite employees to attend meetings, rallies or other gatherings on or off company premises throughout the 24-hour pre-election period, but they cannot assault the workers’ eardrums while they are working.
Copyright) 2000 Nixon Peabody LLP. All rights reserved.
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