*2 through organization. It is their lot is SOBELOFF, Before BOREMAN simple who fact that colored workers a belong CRAVEN, Judges. Circuit off unions better are far those who don’t.” than Judge: SOBELOFF, Circuit Asserting rights freedom, production After the and maintenance inextricably economic are employees Luggage of the Baltimore many together, she bene- bound noted Company overwhelmingly (96-46) voted higher including wages, better fits— designating Inter- favor job security conditions —which Goods, Novelty tional Leather Plastic & members. secured for their unions have Union, AFL-CIO, as their ex- Workers also that the tech- Dr. Jackson observed bargaining agent, National clusive nique united common action was Relations Labor Board so certified move- labor both Luggage, Union. Baltimore ments. bargain refused to the Union with speeches, ap- disputed extemporaneous racially-oriented because of certain peals Company from memories de- reconstructed contends listeners, prived right de- speakers to a several their Bascomb, pastor Agree- and untrammelled Rev. Marion election. livered free ing Company’s member the Board local church and a that the of a given Negro cause, her council of Baltimore branch life for
executive George Cross, NAACP, of a union and St. wife member. representative. another NAACP slay- sniper Cross also mentioned the speech economic of each was that thrust ing organizer Medgar of NAACP Evers. *3 dignity personal could showing He did so in the context of through unionization. be achieved dangers workers that no similar attended organizational activity which, their like Stressing impact united ac- that Evers’s, higher achieving was aimed at a employees tion have standard can living personal standard of and enhanced living, Rev. devoted most of Bascomb dignity. Following to his references analogies homey his to such as a talk rights South, Deep civil deaths in the broken, easily which match when alone is Cross said: but which is harder to break much when you go “Tomorrow when vote there to prove combined with other matches. To any any dogs, won’t be there won’t be boycott point, this same he cited a initi- hoses, fire Klan, won’t Ku there Klux be by a ated Ministers’ Alliance which re- anything won’t to there be bakery’s hiring sulted a a in local few you. stop you go All to do is Negro beginning to drivers and address your place to down of work and there colored “Mr.” male as instead bewill to vote. You will be someone “boys.” among friends. There bewill none of improvement personal dignity, in pressures people had to these face. incident, clearly implied bakery in the you go But when you down I want vividly by was more described Rev. * Bas- yes. you to vote I want ” vignette comb in a short from his child- say T to want the union.’ boy He hood. recalled a in the as management Cross did not discuss the Deep South, parents his worked for Luggage, by Baltimore other than im- him, “fine woman” who would often feed plying, quoted portion in the of his only but through after had he entered her home benign speech, group that it awas more Declaring a rear door. longer that he than the Southerners with whom civil so, could no demean himself he ad- rights to workers had deal. vocated to unionization eliminate all applied The standards to be de vestiges indignities. petty It is dis- termining racially-oriented whether re puted whether he “fine” called this vitiate marks an otherwise valid election “white,” woman but it is clear that she were established Board Sewell that all his listeners understood Manufacturing 66, Co., 138 NLRB However, story bakery that. this and the specifically adopted court involving incident workers are Whitehouse, Schapiro NLRB v. oblique, allusions, direct or (4th 1966). 356 F.2d In Cir. speech. racial matters in the Bascomb recognized Sewell, the Board rele George Cross, hand, St. on the other campaign vant could not statement be specifically rights invoked the civil move- simply condemned it deals because throughout speech. began ment He Temperate matters. racial statements by explaining replacing he the with racial “must be overtones tolerated gone they speaker, scheduled NAACP had who are true and because pertain because rights Mississippi concerning subject to aid a to a job. opening employees knowledge worker fired from his This are entitled to have explanation position note served both as his —the union’s on racial matters.” appearance a lesson in the advan- What the Board refused to tolerate were tages Negroes. arguments “appeals of unionization for or Paral- which can have leling purpose except and labor move- no to inflame the racial ments, emphasized feelings of he the results at- in the election.” In voters through unity short, policy tainable noted that a the Board announced its Liuzzo, woman, white Viola had of a deliberate at- Mrs. who absence Instead, the demon- arrested. tempt exacerbate to “overstress grew bigger. feelings by strations and inflam- irrelevant racial uphold matory appeals,” it elec- you position must is the .This preceded tions which were you’re company that take. Show germane tone, “temperate statements years, going up. back Over factually.” and correct help- you held us down. —Let test, course, requires get a case- up.” Such by-case particular re- application, with Balti- at the This leaflet distributed gard See the facts each instance. Schapiro in. plant of more & Whitehouse Sharnay Mills, 120 NLRB ra- the bitter summer when itself, example, set Sewell the Board *4 monopo- Cambridge at cial disturbances employer the the aside election because Maryland’s of news- lized the headlines unmitigated engaged campaign to in an campaign papers. importantly, the More inject explosive the irrelevant and issue clearly Com- the literature identified mixing” of the unionization “race alleged pany oppressors in the the with drive. He inundated Spewing community. Eastern Shore including material, propaganda with venom, thinly-veiled the forth anti-white large pictures newspaper purportedly literature, under circumstances- the dancing showing white labor leaders “sober, there, may a well have inhibited Negro Negro and an women unidentified exercise of franchise.” informed the dancing woman, a above man with white reading strongly caption a “The CIO the That the is situation pushes By way and endorses the FEPC.” propaganda, disputed case. The instant Sign contrast, of Com- in Allen-Morrison clearly purpose could not for and was the pany, 138 NLRB decided the same exacerbating- the not have had effect of day Sewell, upheld the an elec- as Board gospel prejudices. no This was despite employer tion statement that deep- appealing than of hate. Rather integration actively promotes the union and fears, emotional letter seated the and the throats [it] “tries force down speeches temperately them addressed living people of The the in the South.” self-in selves to economic and social Allen-Morrison is rationale of the case ninety workers, per terest of over temperately-advanced that remark Negro. ex Such an cent of whom germane genuine of and matter legitimate tactic hortation must be to the workers interest white southern any pre-election campaign. Archer attempting whom the union was to or- 1427; Laundry Co., Aristo 150 NLRB ganize. Supply Co., Linen 150 NLRB crat adopting applying prin- and these appeals of is ob these The relevance Schapiro Whitehouse, supra, ciples in germane Just as it vious. pre- this court found community white workers in a southern ceding extremely (89- close election apprised stand to be of the union’s highly 88) in- “so irrelevant so and integration, just “no one * flammatory, as to invalidate suggest Negro not en are workers language most election.” seeking to to know that union titled question there is as follows: discrimination,” engages represent in racial them going you, “If to let are this scare highly pertinent so it 2 you’ve company Negro lost and the has then predominantly electorate for the support this, people of the won. to be told NAACP’s Remember Cambridge advantages get which didn’t nor did the Union and the scared tactics, par give up friends union because their unionization Sovern, raised in Labor Relations No issue was our case as The National validity Discrimination, 62 Colum. factual of the statements Act and Racial employer objects. (1962). L.Rev., to which the attitude, tieularly depressed status, economic this Union’s favorable Marshall re- “by Negroes. ports time the CIO was secured for founded, therefore, consider- there was Board, primary re- has hostility able between unions and sponsibility in de- and broad discretion Negro Negro community.” disenchant- termining validity elections and organized suspicion with and ment propriety campaign- pre-election persisted in 1940’s labor ing,3 and must mindful of this court merger of the AFL-CIO time judicially par- noticeable facts —the two “growing gulf evidence of a there was ticularly plight economic severe labor movement and between country in this the undeniable finding Negro community.” Marshall, history hostility between currently gulf persisting be- wide and a community organized labor. Statis- Negroes partly that unions are lief demonstrating tics suffer situation, responsible for their economic “disproportionately high unemployment that “the unions’ unfavorable concludes earnings”4 disproportionately low image Negro community hin- readily are available. The 1966 Statisti- organizing among unorganized dered cal Abstract of the United States shows Negroes.” years, In recent while median income white signs equitable of a more there have families increased from about $3100 *5 part some racial on attitude the 1964, betwen that of non- and 1947 $6800 Negro unions, organizations, certain and lowly white families rose from a $1600 preach- NAACP, notably have been the during period. same to the $3800 ing to their unionization followers. unemployment figures The show that Negro unemployment the 1966 rate light It Negroes’ pecul- is in the of the nearly that of two and a half times plight special relationship iar and their Monthly 90 84 whites. Labor Rev. organized with labor and that the letter 1967). (Feb. Plainly, Negroes constitute speeches in this case must be viewed. spe- a an identifiable economic with bloc Negro informing Dr. Jackson’s letter a legitimate problem, cial for and thus it is leading electorate that of the one and may them to consider how their interests respected Negro organizations most choosing particularly affected sponsored documenting the union and joining join from whether to or refrain given assistance which unions have a union. Negroes presented mani- considerations festly germane antagonism The between traditional the issue of whether materially a chroni- union labor and is well unions benefit family. Similarly, Unions cled Prof. Marshall’s article worker and his Mr. Negro rhetoric, Community, analogizing 17 Ind. & Cross’s the labor early (1964). showing As Lab.Rel.Rev. 179 movements and community 1913, and revered most eminent interest between two, time, quite appropriate. Booker T. leader can Nor Washington, alliance there be advocated a doubt of the relevance against argument through with business unions and white Rev. Bascomb’s dignity, self-respect discrim- retaliation unionization inatory practices affiliates.5 of AFL considered at least com- social one Noting primary dis- labor movement’s mentator to be a to this solution Negro’s dilemma,6 may crimination contributed nation’s racial be effected. See, Co., g., organized 3. e. NLRB v. Tower 5. For discussion of dis- J. a labor’s A. 324, 330, criminatory practices against Negroes, 329 U.S. L.Ed. 67 S.Ct. 91 see (1946) ; Shirlington Rosen, 322 NLRB v. Su- The Law and Racial Discrimina- permarket, Inc., (4th Employment, F.2d tion in 53 Calif.L.Rev. 1955). (1965). Cir. 731-34 White, Silberman, 6. C. Crisis in Black and Sovern, op. cit., Act, from other sobriety also diminishing but of the lative from Far impede prevent may or which election, propaganda elements material this 69-70.) (pp. possi- choice.” substantially reasonable increased the rational, bility elec- of a well-informed Sewell, recog- Further, the Board torate. prejudice fact based nized the powerful force and emotional adopted color is Applying the Sewell standard preju- appeal Whitehouse, to such Schapiro deliberate find the we to en- or calculated germane, is not intended dice disputed tem- to be statements reasoning faculty. courage perate order The Board’s and factual. made statement was enforced. will therefore be as “elec- Board did intend tolerate Enforced. arguments appeals propaganda” or toral except purpose in- can no which feelings in the the racial of voters Judge flame (dissent- BOREMAN, Circuit election. ing): respectfully state- I submit Most particularly It noted that the state- disagreement my de- ment of Board in ments and declarations majority. cision of the to the em- respect Sewell made with ployer’s inject disturbing efforts irrelevant question is whether inflammatory racial issues into the elec-
pre-election
made
references
Schapiro
campaign.
agents
representatives
tion
N.L.R.B. v.
selected
(1966),
Whitehouse,
acting
Where reason the representative aside other too low the Board will set an active falls one. and direct a new days prior the election meet- NAACP. Several conduct ployees to the sober and informed exercise their ballots for or ganization “Our [******] franchise, have function, elections in an free atmosphere as we in which against a labor or- see conducive from in- it, the em- to cast is to which she tion. She Branch of ing signed by on the the Advancement of Colored Baltimore Branch Union had stationery purported Dr. urged the Lillie M. National Association distributed workers speak for those in Jackson, the Baltimore to vote for People, organiza- written letter, in terference, restraint, explaining or coercion vio- reasons union and in her sympathies grew up young are with there and as he she said: “Our as a they labor movement because have man he realized that there were certain things opened demonstrated are our friends that were not to him. grew helped country us in our civil he As older our struggles. They war, marched with us went to and he called was country. over Washington fight in gomery. from to Mont- Selma seas for our While go of a Union official he wife was over he had to before gave fire, every- life in her our cause.” rifles before bombs and thing, fought against as the American spoke minister who tyrants Europe and the differ- meeting experience recounted his when tyrants But, ent of the Pacific. he boyhood, gone, he had in his back through lived it to return to his home door of home where his mother was Mississippi state and while was he employed and was there fed. Undoubted- there when he returned he found out ly everyone understood that the home was tyranny that the same which he was that of a white woman. He stated fighting Europe in in there Mis- frankly “advisedly” glad that he was sissippi that he decided to work gone that the mistress the house was against through it. And his work with and, effect, very that she would be the NAACP he became one of the most upset much if he her were to come to influential field secretaries. But we again longer home he could no because happened all know what to him while good go conscience to her back door night he did his work. One he when and eat as he once did and she would be doing came from home his work very disappointed and upset if went he got go fields. As he out of his car to her front door. home he was shot the back. Now when Particularly Evers decided to do this he objectionable work doing realized that speech what he was repre- election eve of NAACP putting family his speech sentative Cross. The re- great jeopardy. friends But portions constructed indicates that it he all expressly designed do it same. depided and intended to gave And so his life for passions the move- inflame the racial of those voters present. ments. began And another member was by announcing He Mrs. Viola speaking who I’m sure place [Liuzzo] he was of another magazines your all read about in representative NAACP who was re- *7 so on. quired go from De- Mississippi She housewife because a rights troit. Her husband is a laborman. civil worker had fired And job. her she went to Alabama to do from his He thus set racial tone part fight justice for social economic his talk first reference to rights for all Americans totally civil black white. incident unrelated to And Luggage while she was unknown to Baltimore election or the being her she was followed Then, making Union itself. after finally killed. I think that as she died apparently showing statement aimed might my she T done importance organization, have said he part America,’ is what I stated: tonight. you like to ask Have “ * * As *. a member of the you your part done ? speak I NAACP think I not could These references to violent deaths you reminding you without of some rights martyrs certainly of two civil were fight- great of the work of our freedom germane not to the election issues and try ers. I will to tell about two of highly were calculated to inflamma- Medgar them. One is Evers and tory. Directed as to the other were is Viola Liuzzo. Mr. Evers Mississippi born in employees, and was educated the remarks could arouse feelings. racial and inflame emotions NATIONAL LABOR RELATIONS intemperate appeal the effect had This Petitioner, BOARD, improper bringing an election into namely v. election perspective, integral part of Yokell, Eugene an to be held was about Co- YOKELL and Bernard Co., Partners, rights struggle of the American Art Linen Crescent the civil Negro. d/b/a Needlework, Betsy New Ross point home Cross drove York, Y., Respondents. N. part referring when, after movement, 59, Docket No. played in Liuzzo Mrs. they had whether asked the workers Appeals United States Court of Similarly, part. intem- done his their Circuit. Second hoses, dogs, perate fire references to Argued Oct. obviously Klan and the Ku Klux were Decided Dec. the racial intended to incite and inflame feelings mere men- listeners. The hostility, symbols of tion of these rights engaging in civil those toward negatively demonstrations, though even
stated, because to be condemned inflammatory total
their character Luggage irrelevance to the' Baltimore
situation. decision, my Board, in its majority, speak who now as a
brothers why
assert various reasons as racially propaganda did
Union’s oriented permissible overstep bounds. assigned substance, the are
short reasons merely propaganda question that the through solidarity appeal an consituted for the Union order to achieve Negro employees equality the economic contended,
which, long been it Negroes generally. is thus denied to It
permissible, they 'argue, Union equate election should rights
victory struggle be-
cause economic is one movement basic aims *8 is there- and reference that movement germane to These
fore the election.
arguments, however, fail to heed express in N.L.R.B. v.
court's admonition
Schapiro Whitehouse, Inc., supra, that question quality race in “[e] opportunity”
privilege or economic and the fact
not an election issue in the majority “a ** it *. did not make so. ‘sober, upon inhibited a reliance race the franchise’ and
informed exercise of altogether place.” 356 F.2d out of
at 679.