*1 (Tex.Civ. baugh, part 916, 918 closed, of the 59 S.W.2d a substantial loan App.1933).10 loan unpaid construction on the balance renewed, and un- extended judgment District Court they specifically amendment der the cause fur- vacated remanded for agreed upon and renewal. extension proceedings not ther inconsistent with $500,000 note was executed When the opinion. original deed remained secured equally. The costs are divided security. phrase- trust, plus other cent, per ology is “10 v. Harris Nevels per from the time interest annum money of the until borrower had the use repay
he should the circumstanc- it.” he case, think that “until
es of this repay due date of it” note.8
renewal and extension saving cas- The rationale of clause COMPANY,Inc., CROSSBAKING preference for nonu- es and the Texas Petitioner, here, surious construction relevant just as in our threshold con- NATIONALLABOR RELATIONS apply sideration of whether the life BOARD,Respondent. the loan Our conclusion rule. No. 71-1185. loan lasted until the due date United Appeals, States Court of gives par- extension note effect to the First Circuit. saving ties’ intention evident Heard Nov. agreement 1971. open clause their interpretation more on the than one Decided Dec. 1971. question of date the loan was to Rehearing Denied Dec. terminate.9 findings In its amended correctly
conclusions the District Court
held that interest maximum allowable by subtracting must be calculated $67,500 $860,000 front from the end fee
stated amount of the or advance in prin
der real arrive at amount
cipal received, $792,500. See Nevels v.
Harris, supra, S.W.2d at Co., supra,
Adleson v. B. F. Dittmar 940; Temple
S.W.2d at
Trust Co. v. Sto-
Terry
Teachworth,
supra,
reject
Imperial’s
position
also con-
10. We
loan,
cerned a
stipulation
parties
construction
but
the court
of the
Dis
barred the
arrange-
not consider
effect
correcting
trict Court from
its initial cal
parties
ments
culation,
between
$S60,000.
since the life
was based on
question.
just
stip
the loan
barely arguable
was not in
did,
point,
ulation
covered
if it
$5,000
9. The District
parties
Court
found that a
not bind
the District
payment
interest
calculating
was made on the exten-
Court
to a method of
interest
September 5, 1969,
sion note
misapprehended
after the
Lo
the Texas law.
Imperial
due
gan
date of the note.
has not
Lumber Co.
Commissioner of In
argued
beyond
Revenue,
(5th
loan life went
ternal
Krupman, were on York New brief, petitioner. Davison, Deputy Asst. M. Warren Nash, Counsel, Peter G. with whom Gen. Mallet-Prevost, Counsel, Marcel Gen. Counsel, P. Edward Wen-
Asst. Gen. Washington, C., Atty., D. del, respondent. brief, for Judge, ALDRICH, Mc Chief Before Judges. COFFIN, Circuit ENTEE and Judge. ALDRICH, Chief to this defense employer’s basic to bar- (5) (1) refusal 8(a) section regardless gain that, certification sition of the Board ease is assigns improper. coercive to be two reasons. whether acts shown itself, “[t]he attributable On November 1. Fear and Coercion. important fact is that conditions public on a incident occurred existed and that a free election Dre- Von in which one Patricia street den, *3 thereby impossible.” rendered Diamond actor, another, principal and the 3, Poultry Co., 1953, 107 State N.L.R.B. employees being others, all assaulted two 6. they company, refused of because the inju- pledge support the The union. importantly, More we do kept by the ries one of victims received agree accept refusal to Board’s returning- two for work her from testimony employees re- that Von D of got naturally, this, of months. Word atmosphere of den’s conduct created plant, talk that there was about the and supported by is of fear its citation might The election assaulted. be others Packing Co., 1969, NLRB 395 v. Gissel 22, com- The 1969. was held 575, 1918, U.S. 89 23 S.Ct. L.Ed.2d 547. produced alleges pany incident that this There is a difference be substantial coercion atmosphere of fear and testimony subjec post tween ex facto of The election. prevented a fair signing tive intent in authorization No. 186 N.L.R.B. held otherwise. cards, normally offered to contradict (10/31/70). 28 content, testimony their and of reaction to force or threats force. When fear agree Board, the but present, with and of violence are the threats arguments agree certain employees’ precisely we do not with state is the mind Dreden question in court. Von advanced is at issue. This in-plant considering advo principal wrong was that the Board in important regards it cate. The Board objectively, circumstances but paid un subjective entirely app be that she was shown evidence is however, is not agent. question, ropriate.1 question ion Even when union, culpability whether objective partic one of whether a was atmosphere through fear and coercion ular letter sent the mails was Foods, threat, Home Town criminally in See making created fact. re sender 241, NLRB, Cir., 1967, F.2d Inc. 5 379 subjective v. sponsible, effect of the America, Enterprises upon recipient Shoreline letter re be Cir., 1959, F.2d NLRB, 5 262 Barcley, Inc. v. ceived. See United States that fear would Cir., not follow 942. It does F.2d The Board’s an unofficial effective if it had objectionable less protest that the evidence origin. Indeed, can visualize situa we self-serving, or because it is cannot be might tions more effective. where rebutted, obsolete is reminiscent of violence, instigated If union officials thinking excluding testimony in might gain employees adher anti-union parties. terested get all, rid, of a bel ents ligerent and for once Having this, way no disa- in said we voting against by gree prod atmosphere with resolution of the Board’s whereas if finding em co-employees, rest issue that Von Dre- uct of based its might going discharged ployees they shortly the as- were be den after feel disagreeable return, what sault there left situation and did not were with during election, happen two in the no further ever incidents remaining election. to live it. months hence had learn with before best agree po- any event, the earlier Even had testified that witnesses Co., D.C.Cir., 1971, Equip. Corp. 449 F.2d See NLRB Auto Monroe F.2d Ex-Cell-O- tigated contrary frightened, the Board would learned the truth is were still legal justified principles. and ethical more in both In- than have been unpersuasive. deed, testimony But such a conclusion as this trial proof gives rejected deep point examiner us concern. of fact the offers fright- simply that were deception was, however, There another Nothing ened in was of- November. not noted The letter stat- Board. atmosphere Janu- fered to show the ed that received" “have ary. company’s contention They not, the increase even stated. had Board’s action was unwarranted so on the three- 60 cent This was a basis. indulged in this frivolous that we year, progressive contract, roughly one register, future simply to discussion time, viz., third at a 20 cents at about pre- purposes, our on the matters views question. date Instead of “have *4 viously discussed. cents, employees a over received” 75 average three-year period 40 Misrepresentation. The union Without discussion the cents. campaign in October commenced large concluded “in the context of January being the election scheduled in did fact increases [the union] 22, 20 1969. On secure, was that there not ‘substantial union letter assert a received from ing * * * departure the truth from voting advantage of expected reasonably may to be [which] “this union” was demonstrated what significant impact on the elec- have a plant— another similar ” had achieved in (The Holly- quotation from tion.’ hour; point of In an a week. $30. 750 fact 221, Ceramics, 1962, 140 N.L.R.B. wood in a second the union was 224.) or The given statement sole additional plant. previous union had ob that The support of the Board reason electioneering un $6; or tained 150 also fact that there were was the this added ion that had achieved contract a benefits, holiday some and vacation 600, affirmed or The Board $24. measured. value of which could be finding dollar- trial examiner that irrelevant We this fact both believe wise, difference. not a was material inconsequential. (10/31/70). It did 186 28 N.L.R.B. No. seeking support its decision the ground finding that its on the rest in One Board cites two lines cases. claiming price right was “extravagant” See, promises. e. volves inconse due another credit union was Cir., 1958, Rug g., NLRB, 7 Co. Olson v. misrepresentation quential, con employee re 255, can An 260 F.2d Sugar Indus in NLRB v. Maine demned gard is, and dis promise for what 942, Inc., tries, Cir., 1970, 1 425 F.2d accordingly. case In the count it 945, entitled union was the other fact, appar positive past statement of a Rather, the Board to the entire credit. knowledge the de ently within approach flat there was a took the inapposite. clarer, decisions are exaggeration the union dollar of what Secondly, factual mis cites the Board accept approach. accomplished. We cases, can commendable statement adopt Board, correctly, quite dor, and unfavorable. favorable discounting both the mis the trial examiner’s trend cases definite ground These reveal a representations on the principles. support two state checked the could have misrepresentation sub has if a un found them in the letter and ments stance, if there is discounted suggested why be will an true. No reason employer to make opportunity for the word. employee should doubt union’s Pepperell g., reply. See, e. misrepresentation effective a lat excuse NLRB, Cir., 1958, F. Mfg. 403 5 ground party, hav Co. that the deceived 520, National Bever 2d NLRB ing inves- so, to do could have no reason 1350
ages, 206, Inc., Cir., hardship 418 F.2d 5 Nor is it an undue to the un- weighing against 208. The second is that ion to it in such find circum- materiality misrepresenta- the closeness the election stances. Eleventh hour important. See, Corp. untrue, g., tions, manifestly deliberately e. Follett 91, 95; NLRB, obviously carefully F.2d been timed Graphic Finishing Arts Co. v. obtain the utmost of the un- benefit Cir., 1967, truth, presumably F.2d have been
phrased
go just
enough
far
to meet
The Board did not deal with eith
misrepresenting party
what the
believes
clearly
principles.
er of
these
suggest
It
necessary.
there
not afford
to deal with
closeness
upon
should
affirmative burden
way
vote,
voter the other
since one
party, accordingly,
disprove
ma-
and the union would have lost.2
teriality.
As
If 20 cents
and 60 cents
now
other, the trial
had found that
examiner
eventually
just
good
would sound
as
as
employer
adequate
had had
time
now, it seems
reasonable
cents
reply.
expressly
The Board
declined
why
ask
the union
latter.
sup
decide whether this
very
substantial mis
This
ported.
cannot,
court, rely
in this
representation. None of the Board’s ci
unless we could rule
a matter
support
note
*5
tations
its result. We
against
fact,
employer.
law
ruling
the
our
employer
misrepre
that
where
had
way.
would
the
other
evi
not
sented the facts as to a mere bonus
copy
dence showed that
a
the union’s
electioneering
by
obtained
employer’s
letter first came to the
atten
plant,
was held
another
the election
tion
January
on the afternoon of
Lomb,
tainted. Bausch
Inc.
&
plant
closed,
only
that
a
If
ON PETITION America, UNITED STATES rehearing, contend- The Board seeks Appellant, ing correctness of the pay had having increase “received” Charles Winfield WEST. consequently was not been before No. 71-1687. therewith us. not before In connection time the com- it transmits for the first Appeals, States United Court exceptions, pursuant sec- Third Circuit. pany's filed 160(e), 10(e), tion § U.S.C. Argued Nov. true trial examiner’s decision. Decided Jan. specifically spoke difference these cents, and 75 cents between point even
did make terms How-
the 60 was not “received.” cents
ever, general objec- company made let-
tion: “The union’s mate-
ter of contain impaired misrepresentations
rial freedom choice.” Jurisdictionally, exception enough any misrep
seems broad raise If
resentation borne out record. reason the Board some aliunde
misled, so. far too late now petitioner aside
As a to review and set *6 order, company’s was filed brief plainly
first. Its brief asserted that additionally misrepre
union letter had
sented stated that the 75 cents fully
had been “received.” The Board’s way suggested
brief in no this claim was
impermissible. argument In oral Again repeated point.
company objection. no made now, object argument gone through
after we have consid process writing opinion,
erable
totally unacceptable. implicit
judicial process, as Local reflected our 9,* that, barring
Rule ex a substantial
cuse, digest once, the court will a case but
and ruminates the loose sense no true
the word. We intent to be a
ruminant.
Rehearing is denied. * complied petition rehearing petition with “A contain not.” Board’s shall introductory requirement, argument no men- but makes statement preca- presented before, rule or second. This matter tion to- gether tory. explanation why