FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT

JULY 20, 2001 THOMAS K. KAHN CLERK

_______________ *Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by designation. [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 00-12665

________________________ NLRB No. 12-CA-20506 NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent,

versus GLADES HEALTH CARE CENTER, Respondent-Cross-Petitioner.

________________________ Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board

_________________________ (July 20, 2001) Before HULL, RONEY and GOODWIN*, Circuit Judges. RONEY, Circuit Judge:2 The National Labor Relations Boar d (Board) and “Unite! Union of Needletrades, Industrial and Textile Employees, AFL-CIO, CLC (Union) as intervenor petition for enforcement of th e Board’s orders directing the employer, Glades Health Care Center (Company) to r ecognize and bargain with the Union. The Company cross-petitions for review and to have set aside orders of the Board (1) certifying the Union as the collective barg aining representative for certain of the Company’s employees and (2) finding that the Company engaged in an unfair labor practice by refusing to bargain with the Union in violation of § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1). The Company alleges several pre-election improprieties the cumulative e ffect of which it ar gues has tainted the laboratory conditions required in such elections. See General Shoe Corp. , 77 NLRB 124,127 (1948). Specifically, the Company claims that its refusal is justified and the Board should have set aside the election b ecause (1) the Union engaged in campaign practices that are prohibited under Peerless Plywood Co., 107 NLRB 427 (1953) and its progeny; (2) an eligible voter was im properly disenfranchised when she received two phone calls from purported Union agents with one caller asking if the Union had her support, and the other caller providing fa lse information regarding the time of the election; and (3) a torn piece of a ballot was discovered following the election. The Company also claimed error in the Board’ s refusal to reopen the record to admit3 additional evidence and in ordering the Comp any to bargain and provide information. Based upon the findings of fact by which this Court is bound, we are not persuaded that the Board erred in holding that the Union’s rally did not violate the rule in Peerless Plywood . Accordingly, we hold that the Board did not abuse its discretion in certifying the Union as the collective bargaining representative for certain of the Company employees, and the Board’s petiti on for enforcement is GRANTED. The Company’s cross-petition for review and to have the Board’s orders set aside is
DENIED. 1. The Election. Glades Health Care Center operates a nursing home in Pahokee, Florida. On May 24, 1999, the Union filed a petition withthe Board seeking certification as the collective bargaining representative of th e Health Care Center’s certified nursing assistants (CNAs), housekeeping, laundry and maintenance employees and others. Pursuant to a stipulated elec tion agreement entered into by all parties, on July 7, the Board conducted a secret-ballot election at the Company. The Union had set up shop in a vacant hous e across a two-lane road that borders the facility about fifty yards away. The hous e is clearly visible from the front entrance of the facility, from the west wing of the facility and some residents’ windows. On July 6, 1999, the day before the election, the Union set up a rally from about 2:15 p.m.4 until about 4:30 p.m. during which it broad cast music and speeches from the driveway of the house using bullhorns and a public a ddress system. Employees at the Company work in two shifts: day shift is from 7:00 a. m. to 3:00 p.m. and afternoon shift is from 3:00 p.m. to 11:00 p.m. The rally coincided with this shift change. When the election was completed, the tally of ballots showed that of the 77 eligible voters, 38 voted for the Union, 30 voted against and 4 were challenged ballots. The Company filed seven objections , arguing that the Board should set aside the election because of the Union’s pre-el ection conduct. Afte r conducting a hearing on the objections, the hearing officer issued a report recommending that the Company’s objections be overru led and that the Union be certified as the employees’ bargaining representative. The Company f iled an exception to the hearing officer’s findings, and on October 12, 1999, the Board issued a decision adopting the hearing officer’s findings and certifying the Union. The Company then sought to reopen the record to admit an undated articled from the Union’s newsletter as evidence the Company claimed would require the Board to sustain one of the Company’s el ection objections and set aside the election. The Board denied the Company’s motion, fi nding that the article would not alter the Board’s decision.5 Following the Union’s certification, the Company refused to bargain. The Board found that the Company violated § 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. 158(a )(5) and (1), by refusing to bargain with the Union, and required the Company to bargain with the Union upon request and to post copies of a remedial notice. The Boar d and the Union as intervenor petition this Court for enforcement of the Board’s orde r, and the Company seeks review and to have the order set aside.
2. The Peerless Plywood Rule.
In Peerless Plywood Co., 107 N.L.R.B. 427 (1953) the Board established a rule to be applied in all election cases that prohibits both employers and unions “from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election.” 107 NLRB at 429. On the afternoon before the election, the Employer assembled employees on its property to have them listen to a speech. The Board explaine d that such a speech “tends to create a mass psychology which overrides arguments made through other campaign media and gives an unfair advant age to the party...who in this manner obtains the last most telling word.” 107 NL RB at 429. The key to the decision was that the employees’ attendance at the election speech was not voluntary.6 Subsequently, the Board held it to be a violation when within twenty-four hours of the election and continuing for more than seven hours, the union broadcast campaign speeches and other material from a sound truck parked on the street across from the employer’s plant. See United States v. Gypsum, 115 NLRB 734 (1956). The broadcast was audible inside parts of the plant. Approximately 50 of the 325 workers at the plant heard “or were ina position to hear” the sound trucks while working at their usual stations. Gypsum, 115 NLRB at 735. Likewise, in Industrial Acoustics v. NLRB, 912 F.2d 717 (4th Cir. 1990) on the day before the election and on election day, the Union parked a car, mounted with a loudspeaker system 25-30 yards from the plant entrance and broadcast music and campaign messages during shift changes and l unch breaks. The Board held that the broadcasts, which extended into working hours and the captive lunch break, violated Peerless Plywood

. Bro-Tech Corp. t/a Purolite , 162 LRRM (BNA) 1399 (1999) was a case questioning whether music involved the campaign speech targeted in Peerless Plywood . The union in Bro-Tech, on the day of the electi on, broadcast tape-recorded music with pro-union lyrics from a sound truck parked across the street from the Employer’s facility from 7:00 a.m. to 4:30 p.m. The Board determin ed that these facts established a violation of Peerless Plywood . “[J]ust prior to casting their votes, these7 employees -- whether on their way in to work, on the job, and/or while leaving the plant -- were exposed to the Union’s campai gn broadcast whether they wished to hear it or not.” 162 LRRM at 1402. The Board held it to be a violati on even though the “speech” was in the form of songs. Thes e cases established the principle that an election violation occurs when employee vot ers are forced to hear an election speech either by attendance at a re quired meeting or when they are at their required work stations. The facts, as found by the Board, do not es tablish that such a violation occurred in this case. It is clear that in these cases following Peerless Plywood, there was a firm purpose to use vehicles equipped withloudspeakers to “intentionally broadcast campaign speeches” into the em ployer’s facility so that th e employees at their work stations could not avoid hearing it. Ther e was no other purpose. In this case, by contrast, the Union held an off-premises ra lly, and while the Union used loudspeakers at the rally, “there is no evidence that it intended to use them for any purpose other than to broadcast its message to those w ho voluntarily chose to attend the rally.” The Company argues that the Board im properly weighed the evidence in this regard, and improperly failed to find that employees at thei r work stations were in a position to hear the election speech, and ther efore were a captive audience. Under our standard of review, however, the findings of the Board will be upheld on appeal if8 they are supported by substantial evid ence in the recordas a whole. See Cooper/T. Smith, Inc. v. NLRB , 177 F.3d 1259(11th Cir.1999). It is not enough to show that contrary findings might also be supported by the record. There was varied testimony about the honking of horns and the disruption of the ability of employees on the job to hear what was being said. The hearing officer determined that: Since there was no credited evidence to the contrary, it seems that the eligible voters were unable to hear the exact words of the speech. In fact, none of the eligible voters who testified indicated that they heard any specific words or phrases. As to the argument that the employees were a captive audience, the hearing officer found this: The Employer has indicated th at the employees were a captive audience because they were unable to escape the noise of the union rally while on working time. However, a review of the witness tes timony failed to reveal any hint of a violation of the Peerless Plywood prohibitions. The credited evidence supplied by th e witnesses shows that the CNAs assigned to the shift on the west wing voluntarily peered out an opened window to see what the commotion was about, then closed the window and went about their business. The record also s hows that several other eligible voters were outside for a few minutes during the rally to perform duties and may have overheard some of the commotion. Further, there is no credited evidence that any eligible voters heard any specifi c part of the speeches or the singing made during the rally. In fact, it is admitted by Jablonski and the other witnesse s, that the union agents and9 supporters were at least fifty yards away from the facility at all times during the rally on the day before the election. We have carefully reviewed this case and conclude that these findings are supported by substantial evidence in the recordas a whole. To deny enforcement here would require us to hold, in effect, thata union rally held off premises, close enough to the employees’ place of business so thatsome peripheral sounds could be heard in the facility, was an election violation, even though the sound so heard did not rise to the level of coherent electi on speech. That would be a stretch of the basic principles derived from Peerless Plywood which, as yet, is unsupported by the cases. Peerless Plywood was not intended to interfere with the rights of unions or employers to circulate campaign literature on or off premises at any time prior to the election, nor to prohibit the use of any other legitimate campaign propaganda or media. The Board stated that “the rule does not prohibit employers or unions from making campaign speeches on or off company premises during the 24-hour period if employee attendance is voluntary and on employees’ own time.” Peerless Plywood
at 430. We have reviewed the other objections of the Company to enforcement of the bargaining order and find them to be without merit. PETITION FOR ENFORCEMENT GRANTED, and CROSS-PETITION FOR REVIEW DENIED.