1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-1997

Bro-Tech Corp v. NLRB

Precedential or Non-Precedential:

Docket 95-3343,95-3399

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 95-3343 and 95-3399 

 ___________ 

 BRO-TECH CORP., t/a Purolite 

 Petitioner No. 95-3343, 

v. 

 NATIONAL LABOR RELATIONS BOARD 

 Respondent. 

 ___________ 

 NATIONAL LABOR RELATIONS BOARD 

 Petitioner No. 95-3399, 

v. 

 BRO-TECH CORPORATION, t/a PUROLITE, 

 Respondent. 

 ___________ 

 ON PETITION FOR REVIEW AND 

 CROSS APPLICATION FOR ENFORCEMENT 

 (Nos. 4-RC-17846 and 4-CA-234586) 

 ___________ 

 ARGUED JUNE 27, 1996 

 BEFORE: BECKER, NYGAARD and LEWIS, Circuit Judges. 

 (Filed January 31, 1997) 

 ___________ 

Stephen J. Cabot, Esq. (ARGUED) 

Harvey, Pennington, Herting & Renneisen 

1835 Market Street 

Eleven Penn Center, 29th Floor 

Philadelphia, PA 19103 

 Attorney for Bro-Tech Corp. t/a Purolite

Aileen A. Armstrong, Esq. 

Richard A. Cohen, Esq. (ARGUED) 

National Labor Relations Board 
2

1099 14th Street, N.W. 

Washington, DC 20570-0001 

 Attorneys for National Labor Relations Board

 ___________ 

 OPINION OF THE COURT 

 ___________ 

BECKER, Circuit Judge. 

 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 § 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 
3

deny the petition for enforcement, grant the petition for review, 

and remand for further proceedings.1

I. 

A. 

 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: 

 First song: 

 

1. Purolite also made a charge of improper electioneering based 

upon the testimony of witnesses Angelo Siano and Jose Mercado 

about certain representations that Union observer Sammy Santana 

allegedly made to several employees. The Hearing Officer 

rejected this testimony, finding both Siano and Mercado 

unreliable. Instead, the Officer credited the testimony of the 

Board's observer DeNio, whose version was favorable to the Union. 

 The Board adopted the Hearing Officer's report in this respect. 

 The Board's finding is supported by substantial evidence, and we 

will neither disturb it nor discuss it further herein. 
4

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 

we're Teamsters one and all 

We're carving out a better life 

for our loved ones old and young 

we're giving them the melody 

the song that's not been sung 

In a moment of reflection 

I close my eyes and see 

the dreams our fathers had for us 

are now reality 

 Second song: 

Let's hail the Teamsters Union and sing of it with pride 

Remember Teamster members, your Union's by your side 

As long as we're together, our numbers will increase 

and this will be our motto: prosperity and peace 

Now all for one and one for all is something you have heard 

But when the Teamsters say it, the boys mean every word 

So hail the Teamsters Union and shout it loud and clear 

The Brotherhood of Teamsters will always be right here . . . 
5

 When the election was completed, the Union's margin of 

victory was five votes.2

B. 

 Purolite filed nine objections to the Union’s conduct 

allegedly affecting the results of the election. Following an 

investigation, the Regional Director recommended that all but two 

of Purolite's objections be overruled without a hearing. The two 

remaining objections involved the Union's use of the sound truck 

and allegations that the Union observer engaged in improper 

electioneering. The Regional Director determined that, because 

these two objections raised substantial material issues of fact, 

a hearing was necessary to determine whether the use of the sound 

truck violated the rule promulgated in Peerless Plywood Co., and 

whether Santana's conduct constituted improper electioneering in 

the polling area in violation of the rule of Milchem Inc., 170 

N.L.R.B. 362 (1968). See supra n.1. The Board adopted the 

Regional Director's Report and Recommendations. 

 After conducting three days of hearings, the Hearing 

Officer issued a Report and Recommendations on Purolite's two 

remaining objections. As to the Union's use of the sound truck, 

the Hearing Officer first considered whether the songs 

constituted campaign speech, writing: 

[T]he songs broadcast into the plant on the day of the 

election were no different than a speech 

because the lyrics of these songs include 

campaign phrases such as “the brotherhood of 

 

2. Purolite challenged the validity of two votes; however, these 

votes were insufficient to change the outcome of the election. 
6

Teamsters will always be right here;” ... . 

These messages, although sung and accompanied 

by music, are clearly emotional appeals to 

sway voters in favor of the Petitioner by 

telling the voters how the Petitioner will 

benefit them if elected. ... These lyrics 

contain significantly more meaning and are 

more characteristic of a speech than is the 

mere repetition of a slogan to vote for the 

Petitioner accompanied by music, which the 

Board determined not to be a campaign speech 

in Crown Paper Board, 158 N.L.R.B. 440. 

Although the songs contained no specific 

mention of the Employer, or any campaign 

issue, the message behind the lyrics is 

clear: The Petitioner, if elected, will be 

"working hard for what is fair" and "carving 

out a better life," bringing "prosperity and 

peace." ... Often, last minute campaign 

speeches do not focus on any specific issue 

but are more generalized themes of how voting 

for a particular party will benefit the 

employees. Such is the case here. 

 The Hearing Officer then recommended that Purolite's 

first objection be sustained because the sound truck broadcasts 

violated the Board's Peerless Plywood rule against holding 

captive audience speeches within twenty-four hours of the 

election. However, the Officer rejected Purolite's alternative 

argument advanced in its post-hearing brief that the songs 

violated the Board's rule, which it announced in Alliance Ware, 

against electioneering at or near the polling place. In that 

regard, she found that "there [wa]s no evidence that employees 

were waiting in line to vote in th[e] corridor [outside the 

voting room] where the broadcast was heard," and that "the record 

is clear that the broadcast could not be heard within the polling 

areas [itself]." 

 The Board adopted most of the Hearing Officer's Report 

and Recommendations, but rejected her conclusion that the sound 
7

truck broadcasts constituted campaign speech. Instead, the Board 

concluded that the songs are "more similar to appeals to vote set 

to music," which the Board had previously determined to be 

unharmful in Crown Paper Board, 158 N.L.R.B. 440 (1966). 

According to the Board, the songs "do not make any specific 

campaign promises; do not address wages, hours, terms or 

conditions of employment or other collective bargaining issues; 

do not refer in any way to the Employer; and indeed, do not 

contain specific appeals to vote in favor of Petitioner." As 

such, "[t]hese phrases do not convey the type of message that 

requires a response or rebuttal from the employer," and the 

Union's broadcasts of the songs thus did not violate the Board's 

rule against campaign speech to a captive audience within 24 

hours of an election. Based on its characterization of the 

songs, the Board also rejected Purolite's argument that the songs 

constituted improper electioneering "at or near the polls.” A 

certificate of representation was then issued. 

 Despite the Board's decision, Purolite refused to 

negotiate with the Union. In response, the Union filed an unfair 

labor practice charge with the Board. Purolite admitted its 

refusal to bargain but challenged the validity of the Board's 

certification of the Union. Following motions for summary 

judgment, the Board concluded that Purolite's refusal to bargain 

with the Union violated § 8(a)(1) and (5) of the National Labor 

Relations Act, 29 U.S.C. § 158(a)(1) & (5). This appeal 

followed. The Board had jurisdiction over the unfair labor 

practice charge under 29 U.S.C. § 160(a) & (b). We have 
8

jurisdiction to review the Board's decision under 29 U.S.C. 

§ 160(e) & (f). 

II. 

 Our authority to review an order of the NLRB is 

limited. "If the Board adopts a rule that is rational and 

consistent with the Act, then the rule is entitled to deference 

from the courts. Moreover, if the Board's application of such a 

rational rule is supported by substantial evidence on the record, 

courts should enforce the Board's order." District 1199P, 

National Union of Hospital and Health Care Employees v. NLRB, 864 

F.2d 1096, 1101 (3d Cir. 1989) (quoting Fall River Dyeing & 

Finishing Corp. v. NLRB, 107 S. Ct. 2225, 2235 (1987)); see also

NLRB v. Joy Techs., Inc., 990 F.2d 104, 107-08 (3d Cir. 1993). 

Deference to the Board, however, is not automatic but depends 

"substantially on the persuasiveness of the agency view." Local 

825, Int’l Union of Operating Eng’rs v. NLRB, 829 F.2d 458, 460 

(3d Cir. 1987). 

 Where the review is not a question of fact, “but of a 

judgment as to the proper balance to be struck between 

conflicting interests, ‘[t]he deference owed to an expert 

tribunal cannot be allowed to slip into a judicial’ inertia which 

results in the unauthorized assumption by an agency of major 

policy decision properly made by Congress.” Id. (quoting NLRB v. 

Brown, 85 S.Ct. 980, 988 (1965)). In order to persuade the court 

in these situations, the Board must provide the “reasons for its 

actions" in addition to "sufficient factual findings to support 

them." Local 467, Upholsterers' International Union of North 
9

America v. NLRB, 419 F.2d 179, 182 (3d Cir. 1969); see also

Atchison, Topeka, & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 

U.S. 800, 807 (1973) (The "arbitrary and capricious" standard of 

review requires that an "agency [] set forth clearly the grounds 

on which it acted."); Local 825, Int’l Union Operating Eng’rs, 

829 F.2d at 460 ("A position without reasoning has little power 

to persuade."); NLRB v. Auciello Iron Works, Inc., 980 F.2d 804, 

813 (1st Cir. 1992) (quoting Northport Health Servs., Inc. v. 

NLRB, 961 F.2d 1547, 1553-54 (11th Cir. 1992) (“A court may 

require that the Board’s decision be supported by articulate, 

cogent and reliable analysis.”). 

 Additionally, where, as here, the Board has reversed a 

Hearing Officer's findings in its decision, the Board must offer 

some explanation for the reversal before the court of appeals 

will defer to its determinations. See Alabama Ass’n of Ins. 

Agents v. Bd. of Governors of the Fed. Reserve System, 533 F.2d 

224, 247 (5th Cir. 1976) (Board's findings are vulnerable "where 

it merely announces an opposite conclusion from the [ALJ] without 

explanation”); ITT Continental Baking Co. v. FTC, 532 F.2d 207, 

219 (2d Cir. 1976) (when agency departs from the ALJ's findings 

"it must explain why"); Greater Boston Television Corp. v. FCC, 

444 F.2d 841, 853 (D.C. Cir. 1970) ("agency's departures from the 

Examiner's findings are vulnerable if they fail to reflect 

attentive consideration to the Examiner's decision"); cf.

Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000, 1008 (3d 

Cir. 1981) (quoting Eastern Eng'g & Elevator Co. v. NLRB, 637 

F.2d 191, 197 (1980)) (Board's decision may be less "substantial" 
10

when an "impartial experienced examiner who has observed the 

witnesses and lived with the case has drawn conclusions different 

from the Board's ... ."). 

 An additional consideration informs our application of 

the deference principle in the elections context: the Board acts 

in this context with scant direction from Congress. Congress has 

said no more than that elections must be "fair" and free of 

"interfere[nce], restrain[t], [and] coerc[ion]." See 29 U.S.C. 

§§ 158-160. The Board has been asked to translate these 

guideposts into practical rules of election procedure. See,

e.g., General Shoe Corp., 77 N.L.R.B. 124 (1948). Considering 

the limits of Congress's constitutional power to delegate its 

authority, it gives us pause when the Board acts legislatively 

without clear Congressional direction unless there is rigorous 

judicial review. 

 The line-drawing that the non-delegation doctrine 

requires has kept the Supreme Court from enforcing it. See

Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., 

dissenting) ("But while the doctrine of unconstitutional 

delegation is unquestionably a fundamental element of our 

constitutional system, it is not an element readily enforceable 

by the courts."). We believe, however, that when the 

circumstances we have described herein operate together, we have 

an especial right to insist on rigorous, reasoned NLRB decision 

making. The Board has not supplied such decision making here. 

III. 
11

A. 

 In Peerless Plywood, the NLRB prohibited 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 N.L.R.B. at 429. 

 The Board felt compelled to limit preelection campaigning in 

these circumstances because experience had demonstrated that last 

minute speeches delivered to massed assemblies tended "to create 

a mass psychology which overrides arguments made through other 

campaign media and gives an unfair advantage to the [speaking] 

party," and "to destroy freedom of choice and establish an 

atmosphere in which a free election cannot be held." Id. at 429-

30. In an attempt not to circumscribe overly the free speech 

interests of employers and unions, the Board also noted that the 

Peerless Plywood rule does not prohibit the use of "any other 

legitimate campaign propaganda or media," or even the delivery of 

speeches within 24 hours of an election on or off the premises 

provided "employee attendance is voluntary and on the employees' 

own time." Id. at 430. 

 The NLRB has since applied the Peerless Plywood rule to 

limit the use of sound trucks as well as assembly speeches. In 

United States Gypsum Co., 115 N.L.R.B. 734 (1956), the Union used 

a sound truck to broadcast campaign speeches over a 7 1/2 hour 

period the day before the election. While the Board noted that 

Peerless Plywood was usually applied to a group or assembly of 

employees gathered together for the purpose of hearing a speech, 

it concluded that "the critical factor in this regard is not the 
12

location of the speaker but whether the employees are exposed to 

his remarks." Id. at 735. Because the sound truck broadcast 

triggered the same considerations operative in establishing the 

Peerless Plywood rule, the Board determined that the Union's 

conduct had "destroy[ed] the freedom of choice of the employees," 

and set aside the election. Id.

 In Crown Paper Board Co., 158 N.L.R.B. 440 (1966), the 

Union used a sound truck to broadcast during a change of shifts 

"vote for Local 286" interspersed with music. The Board 

distinguished both Peerless Plywood and Gypsum, and determined 

that this use of the sound truck was permissible. The Board 

first emphasized that, because most employees were not on company 

time when they were exposed to the broadcasts, Peerless Plywood

was inapplicable. Id. at 443. The Board then distinguished 

Gypsum on several grounds, namely that the broadcast in Crown 

Paper Board was "only an appeal to vote ... with musical 

interludes," as opposed to a speech; the broadcast lasted "about 

an hour," and not all day; and most employees heard the broadcast 

while arriving or departing from work, and not on company time. 

Id. at 443-44. Finally, the Board specifically addressed the 

concerns expressed in Peerless Plywood, concluding that, while 

the "Union's repetition of a voting slogan and its music may have 

been `blaring,' `cacophonous,' or even likely to `befoul' the 

plant `with a babble of commercials and public cheerleading,'" 

the messages were not the type of messages that would influence 

voters by creating a mass psychology that overrides other 

arguments. Id. at 445. 
13

B. 

 The overarching question in this case is whether the 

songs played by the Teamsters constitute prohibited campaign 

speech. The Board determined that they were not. If the Board 

had adequately explained how its decision can be reconciled with 

the Peerless Plywood theory of "campaign speech," or, to the 

extent that it cannot, what the analytical basis is for the new 

theory that supports the Board's decision, we would be 

constrained to defer to the Board's judgment and enforce its 

order. But the Board has given no such explanation(s). 

 We must first consider the Board's decision itself, 

which, unless we are missing something, is one whose reasoning 

fails to withstand scrutiny. The Board's seminal Peerless 

Plywood decision was driven by a concern that the mass psychology 

created by campaigning tends to interfere with the "sober and 

thoughtful choice which a free election is designed to reflect". 

 Peerless Plywood, 107 N.L.R.B. at 429. The Hearing Officer, who 

observed the witnesses and lived with the case, found that test 

met, concluding that the Teamsters’ songs constituted “emotional 

appeals to sway voters” and as such were “no different than a 

speech.” 

 Despite the Officer’s findings, the Board reversed her 

decision and certified the election. Although expressly adopting 

the Officer’s credibility findings and acknowledging that the 

sound truck broadcasts were audible within the plant throughout 

the day, the Board reasoned that: “Contrary to the [H]earing 
14

[O]fficer, we find that the Teamsters songs are more similar to 

appeals to vote set to music, which have been found not to 

violate the Peerless Plywood prohibition.” According to the 

Board, the songs did not constitute campaign speech because they 

did "not make any specific campaign promises," and therefore did 

“not convey the type of message that require[d] a response or 

rebuttal from the employer.” When faced with the rationale 

underlying Peerless Plywood, the Board peremptorily stated “the 

broad and amorphous quality of the lyrics would not create the 

type of ‘mass psychology’ that concerned” the Peerless Plywood

Board. As we see it, in doing so, the Board abandoned without 

explanation any standard conception of campaign speech it had 

previously articulated. 

 Like the Hearing Officer, we believe that the songs at 

issue clearly fall under the Board's rationale in Peerless 

Plywood. Referencing the lyrics set forth supra at 5-6, we 

cannot imagine what would more create "mass psychology" that 

"tend[s] to interfere with that sober and thoughtful choice which 

a free election is designed to reflect" than these lyrics, which, 

especially when set to music, appeal to the most visceral 

emotions of the workers. That rhetoric is at least as likely and 

probably more likely to induce "mass psychology" than a dry 

speech addressing specific campaign issues, even wages and hours. 

 If modern political campaigns have taught us anything, it is 

that this type of emotional rhetoric has a heavy impact upon the 

voter. It certainly warrants no less a response from the 

employer than more specific campaign rhetoric. While we may not 
15

substitute the Board’s conclusion with our own, even though we 

find the Board’s conclusion to be illogical, we can at the least 

require that the Board do more than discard its Peerless Plywood

doctrine without explanation. 

 The Board's failure to distinguish the precedent of 

Peerless Plywood engenders greater concern when viewed as part of 

the Board's total jurisprudence in this area. As reflected by 

our previous description of the Peerless Plywood case law, the 

Board has chosen to develop union election law through ad hoc

adjudication. We recognize that the Board generally retains this 

discretion. See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). 

 But it is especially unfortunate when the Board puts forth such 

a patchwork of adjudications without adequate rationalization, 

thereby abandoning potential litigants inside a maze of decisions 

with no means to map an exit. In the end, Peerless Plywood, 107 

N.L.R.B. 427 (1950), United States Gypsum, 115 N.L.R.B. 734 

(1956), Crown Paper, 158 N.L.R.B. 440 (1966), and now this case, 

create exactly this peril. 

 The Board defends its decision in part by asserting its 

congressional mandate to establish the rules in this area. We do 

not question this mandate. But, as we have noted, in fashioning 

a new rule, the Board's authority is not without boundaries. The 

Board may not, by ipse dixit, simply issue new rules (or 

"interpret" its old ones) without explaining the reason for their 

issuance (or reinterpretation). See Atchison, Topeka & Santa Fe 

Ry., 412 U.S. at 807. In light of its disregard for the Hearing 

Officer's findings and its departure from the Peerless Plywood
16

rule, the Board must explain itself in order to obtain the 

deference that it seeks. 

 The Board, therefore, had two options in approaching 

this case: it could have (1) explained how its decision to make 

the existence of specific campaign issues the dispositive issue 

in this case is consistent with the Peerless Plywood rationale; 

or (2) with adequate explanation, created a new theory of 

campaign speech to replace the Peerless Plywood rationale. It 

did neither. For this reason, and in order to provide the Board 

with the opportunity to satisfy this standard, we will deny the 

petition for enforcement, grant the petition for review, and 

remand for further proceedings. 

IV. 

 Purolite's alternative argument is that, because the 

broadcasts could be heard directly outside the voting room and 

inside the room when the door was open, the broadcasts violated 

the rule established in Alliance Ware, 92 N.L.R.B. 55 (1950), 

and, therefore, the Board's failure to apply Alliance Ware

amounts to an abuse of discretion. See Industrial Acoustics Co. 

v. NLRB, 912 F.2d 717, 722 (4th Cir. 1990) (holding that the 

failure to apply Peerless Plywood rule without abandoning it 

constitutes an abuse of discretion). 

 In Alliance Ware, a sound truck broadcast 

"electioneering material" across the street from the employer's 

parking lot. Although there was no evidence that the sound truck 

broadcasts were audible inside the plant or in the voting room 

itself, all employees entering the plant could hear them. After 
17

considering the employer's objection, the Board set aside the 

election, explaining that: 

The sole question is whether the electioneering 

conducted by the Petitioner by means of the 

sound truck was "at or near" the polling 

place. We believe that it was. The 

determining factor is not the linear distance 

from the sound truck to the employees' 

entrance or the polling place, but the 

immediacy of the voice of the electioneering 

broadcaster to the eligible voters as they 

approached the polling place ... . 

Id. at 56. 

 In the case at bar, the Hearing Officer concluded that 

Alliance Ware was inapplicable because "there is no evidence that 

employees were waiting in line to vote in this corridor where the 

broadcast was heard, and the record is clear that the broadcast 

could not be heard within the polling areas." Had the Board 

based its decision exclusively upon the Hearing Officer's 

conclusion, we would be compelled to grant review and deny 

enforcement outright for, in Alliance Ware, the Board found that 

the facts that workers were not waiting in line and that the 

broadcast could not be heard in the polling place were 

irrelevant. 

 The Board, however, found Alliance Ware inapplicable 

based upon different reasoning. According to the Board: 

For the same reasons that we do not find the [Union's] 

conduct objectionable under Peerless Plywood, 

we find no merit in the Employer's argument 

that the [Union's] broadcast of the Teamsters 

songs constituted improper electioneering "at 

or near the polls" under Alliance Ware, 92 

N.L.R.B. 55 (1950). In addition, we find it 

significant that although Alliance Ware is a 

soundcar case, it predates Peerless Plywood

and the Board's application of the Peerless 

Plywood rule in soundcar cases. 
18

Bro-Tech Corp., 315 N.L.R.B. 1014, 1015 n.7 (citations omitted). 

 Purolite submits that because Alliance Ware defines "at or near 

the polls," and Peerless Plywood defines campaign speech, the 

inquiries are clearly distinct. We are less certain; as is 

evident, the reasoning in this case defies easy explanation. In 

contrast, counsel for the Board argues that the Board simply 

overruled Alliance Ware as incompatible with Peerless Plywood. 

That too is far from clear. The Board’s decision here appears to 

adopt or recognize the same definition for campaign speech and 

electioneering in the context of sound trucks. But if 

electioneering deserves more protection than campaign speech, as 

it may, then the status of Alliance Ware after Peerless Plywood

and the decision in this case is a mystery. 

 Because of our disposition of the Peerless issue, we 

have no need to reach the Alliance Ware issue. But as the 

discussion in Part III as well as this Part IV suggest, the 

Board’s law in this area is in a state of confusion. We will 

leave the Alliance Ware issue to the Board on remand, but we 

suggest that this area of Board law could benefit from 

thoroughgoing review and clarification. 

V. 

 For the foregoing reasons, the Board's Petition for 

Enforcement will be granted in part and denied in part, and the 

petition for review will be granted in part and denied in part. 
19

 The case will be remanded to the Board for further proceedings 

consistent with this opinion.3

 

3. Purolite has argued that it was entitled to an evidentiary 

hearing for its objection that the totality of the circumstances 

required an new election. With election challenges, however, a 

party is only entitled to an evidentiary hearing if the challenge 

raises "substantial and material factual issues." NLRB v. ARA 

Services, Inc., 717 F.2d 57, 67 (3d Cir. 1983) (in banc); St. 

Margaret Mem’l Hosp. v. NLRB, 991 F.2d 1146, 1156 (3d Cir. 1993). 

 We leave it to the Board to determine on remand whether an 

evidentiary hearing on the "totality" issue is in order.