NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The BALTIMORE LUGGAGE COMPANY, Respondent. International Leather Goods, Plastics & Novelty Workers' Union, AFL-CIO, Intervenor, 387 F.2d 744

SOBELOFF, Circuit Judge: After the production and maintenance employees of the Baltimore Luggage Company voted overwhelmingly (96-46) in favor of designating the Intertional Leather Goods, Plastic & Novelty Workers Union, AFL-CIO, as their exclusive bargaining agent, the National Labor Relations Board so certified the Union. Baltimore Luggage, however, has refused to bargain with the Union because of certain racially-oriented appeals which the Company contends deprived the employees of their right to a free and untrammelled election.

Agreeing with the Board that the Company’s refusal to bargain violated § 8(a) (5) of the Labor Act, we enforce the Board’s order requiring the employer to bargain in good faith with the employees’ properly elected representative. Of the 144 eligible voters employed by the respondent Company, a manufacturer and distributor of luggage, 134 are Negro. To these workers certain appeals endorsing the Union were made by representatives of the National Association for the Advancement of Colored People.

The Company’s objections to the validity of the election are premised upon these expressions of opinion, contained in a letter and two speeches. The letter, written under an NAACP letterhead by Dr. Lillie M. Jackson, President of the Baltimore Branch of the NAACP, urged support for the Union. In explaining the NAACP’s advocacy of unionization, Dr. Jackson said, in part: “Our sympathies are with the labor movement because they have demonstrated that they are our friends and have helped us in our civil rights struggles. They have marched with us in Washington and from Selma to Montgomery.

The wife of a Union official gave her life in our cause. We believe the only way the workers of Baltimore Luggage can improve their lot is through organization. It is a simple fact that colored workers who belong to unions are far better off than those who don’t.” Asserting that freedom, civil rights and economic opportunity are inextricably bound together, she noted the many benefits — including higher wages, better conditions and job security — which unions have secured for their members. Dr. Jackson also observed that the technique of united action was common to both the civil rights and labor movements.

The disputed extemporaneous speeches, reconstructed from the memories of the speakers and several listeners, were delivered by Rev. Marion Bascomb, pastor of a local church and a member of the executive council of the Baltimore branch of the NAACP, and St. George Cross, another NAACP representative. The thrust of each speech was that economic opportunity and personal dignity could be achieved through unionization. Stressing the impact that united action can have on the employees standard of living, Rev.

Bascomb devoted most of his talk to homey analogies such as a match which when alone is easily broken, but which is much harder to break when combined with other matches. To prove this same point, he cited a boycott initiated by a Ministers’ Alliance which resulted in a local bakery’s hiring a few Negro drivers and beginning to address colored male employees as “Mr.” instead of “boys.” The improvement in personal dignity, clearly implied in the bakery incident, was more vividly described by Rev. Bascomb in a short vignette from his childhood.

He recalled that as a boy in the Deep South, his parents worked for a “fine woman” who would often feed him, but only after he had entered her home through a rear door. Declaring that he could no longer demean himself so, he advocated unionization to eliminate all vestiges of petty indignities. It is disputed whether he called this “fine” woman “white,” but it is clear that she was and that all his listeners understood that. However, this story and the bakery incident involving Negro workers are the only allusions, direct or oblique, to racial matters in the Bascomb speech. St.

George Cross, on the other hand, specifically invoked the civil rights movement throughout his speech. He began by explaining that he was replacing the scheduled NAACP speaker, who had gone to Mississippi to aid a Negro civil rights worker fired from his job. This opening note served both as an explanation of his appearance and as a lesson in the advantages of unionization for Negroes. Paralleling the civil rights and labor movements, he emphasized the results attainable through unity and noted that a white woman, Mrs. Viola Liuzzo, who had given her life for the Negro cause, was the wife of a union member.

Cross also mentioned the sniper slaying of NAACP organizer Medgar Evers. He did so in the context of showing the workers that no similar dangers attended their organizational activity which, like Evers’s, was aimed at achieving a higher standard of living and enhanced personal dignity. Following his references to civil rights deaths in the Deep South, Cross said: “Tomorrow when you go to vote there won’t be any dogs, there won’t be any fire hoses, there won’t be any Ku Klux Klan, and there won’t be anything to stop you. All you have to do is go down to your place of work and there will be someone to vote.

You will be among friends. There will be none of the pressures these people had to face. But when you go down there I want you to vote yes. * * * I want you to say T want the union.’ ” Cross did not discuss the management of Baltimore Luggage, other than by implying, in the quoted portion of his speech, that it was a more benign group than the Southerners with whom civil rights workers had to deal.

The standards to be applied in determining whether racially-oriented remarks vitiate an otherwise valid election were established by the Board in Sewell Manufacturing Co., 138 NLRB 66, and specifically adopted by this court in NLRB v. Schapiro & Whitehouse, Inc., 356 F.2d 675, 679 (4th Cir. 1966). In Sewell, the Board recognized that a relevant campaign statement could not be condemned simply because it deals with racial matters.

Temperate statements with racial overtones “must be tolerated because they are true and because they pertain to a subject concerning which employees are entitled to have knowledge —the union’s position on racial matters.” What the Board refused to tolerate were “appeals or arguments which can have no purpose except to inflame the racial feelings of voters in the election.” In short, the Board announced its policy to be that in the absence of a deliberate attempt to “overstress and exacerbate racial feelings by irrelevant and inflammatory appeals,” it would uphold elections which were preceded by racial statements “temperate in tone, germane and correct factually.” Such a test, of course, requires a case-by-case application, with particular regard to the facts in each instance.

See Sharnay Mills, 120 NLRB 750, 751. In Sewell itself, for example, the Board set aside the election because the employer engaged in an unmitigated campaign to inject the irrelevant and explosive issue of “race mixing” in the unionization drive.

He inundated his employees with propaganda material, including large newspaper pictures purportedly showing white labor leaders dancing with Negro women and an unidentified Negro man dancing with a white woman, above a caption reading “The CIO strongly pushes and endorses the FEPC.” By way of contrast, in Allen-Morrison Sign Company, 138 NLRB 73, decided the same day as Sewell, the Board upheld an election despite an employer statement that the union actively promotes integration and “tries to force [it] down the throats of the people living in the South.” The rationale of the Allen-Morrison case is that this temperately-advanced remark was germane and a matter of genuine interest to the white southern workers whom the union was attempting to organize.

In adopting and applying these principles in Schapiro & Whitehouse, supra, this court found that the propaganda preceding the extremely close election (89-88) was “so irrelevant and so highly inflammatory, * * * as to invalidate the election.” The language most in question there is as follows: “If you are going to let this scare you, then you’ve lost and the company has won. Remember this, the people at Cambridge didn’t get scared nor did they give up because their friends were arrested. Instead, the demonstrations grew bigger. .This is the position that you must take.

Show this company that you’re not going to back up. Over the years, you have been held down. — Let us help-you to get up.” This leaflet was distributed at the Baltimore plant of Schapiro & Whitehouse in. the summer of 1963, when the bitter racial disturbances at Cambridge monopolized the headlines of Maryland’s newspapers. More importantly, the campaign literature clearly identified the Company with the alleged oppressors in the Eastern Shore community.

Spewing forth thinly-veiled anti-white venom, the literature, under the circumstances-there, may well have inhibited a “sober, informed exercise of the franchise.” That is not the situation in the instant case. The disputed propaganda, was clearly not for the purpose and could not have had the effect of exacerbating-racial prejudices. This was no gospel of hate. Rather than appealing to deep-seated emotional fears, the letter and speeches temperately addressed themselves to the economic and social self-interest of the workers, over ninety per cent of whom were Negro.

Such an exhortation must be a legitimate tactic in any pre-election campaign. Archer Laundry Co., 150 NLRB 1427; Aristocrat Linen Supply Co., 150 NLRB 1448. The relevance of these appeals is obvious.

Just as it was germane for white workers in a southern community to be apprised of the union’s stand on integration, and just as “no one would suggest that Negro workers are not entitled to know that the union seeking to represent them engages in racial discrimination,” so it is highly pertinent for the predominantly Negro electorate to be told of the NAACP’s support of the Union and the advantages which unionization and union tactics, and partieularly this Union’s favorable attitude, have secured for Negroes.

The Board, which has the primary responsibility and broad discretion in determining the validity of elections and the propriety of pre-election campaigning, and this court must be mindful of two judicially noticeable facts — the particularly severe economic plight of the Negro in this country and the undeniable history of hostility between the Negro community and organized labor. Statistics demonstrating that Negroes suffer “disproportionately high unemployment and disproportionately low earnings” are readily available.

The 1966 Statistical Abstract of the United States shows that while the median income of white families increased from about $3100 to $6800 betwen 1947 and 1964, that of nonwhite families rose from a lowly $1600 to only $3800 during the same period. The unemployment figures show that in 1966 the rate of Negro unemployment was nearly two and a half times that of whites. 90 Monthly Labor Rev. 84 (Feb. 1967).

Plainly, Negroes constitute an identifiable economic bloc with a special problem, and thus it is legitimate for them to consider how their interests may be particularly affected in choosing whether to join or refrain from joining a union. The traditional antagonism between labor unions and Negroes is well chronicled in Prof. Marshall’s

article Unions and the Negro Community, 17 Ind. & Lab.Rel.Rev. 179 (1964). As early as 1913, the most eminent and revered Negro leader of the time, Booker T. Washington, advocated a Negro alliance with business against unions and white employees in retaliation for the discriminatory practices of AFL affiliates.

Noting that the labor movement’s discrimination contributed to the Negro’s depressed economic status, Marshall reports that “by the time the CIO was founded, therefore, there was considerable hostility between unions and the Negro community.” Negro disenchantment with and suspicion of organized labor persisted in the 1940’s and by the time of the AFL-CIO merger in 1955, there was evidence of a “growing gulf between the labor movement and the Negro community.” Marshall, finding a currently wide gulf and a persisting belief by Negroes that unions are partly responsible for their economic situation, concludes that “the unions’ unfavorable image in the Negro community has hindered organizing among unorganized Negroes.” In recent years, however, there have been signs of a more equitable racial attitude on the part of some unions, and certain Negro organizations, notably the NAACP, have been preaching unionization to their followers.

It is in the light of the Negroes’ peculiar plight and their special relationship with organized labor that the letter and the speeches in this case must be viewed. Dr. Jackson’s letter informing a Negro electorate that one of the leading and most respected Negro organizations sponsored the union and documenting the assistance which unions have given Negroes presented considerations manifestly germane to the issue of whether a union would materially benefit the worker and his family. Similarly, Mr.

Cross’s rhetoric, analogizing the labor and civil rights movements and showing the community of interest between the two, was quite appropriate. Nor can there be any doubt of the relevance of Rev. Bascomb’s argument that through unionization self-respect and dignity, considered by at least one social commentator to be a primary solution to this nation’s racial dilemma, may be effected. Far from diminishing the sobriety of the election, this propaganda material may have substantially increased the possibility of a rational, well-informed electorate.

Applying the Sewell standard adopted in Schapiro & Whitehouse, we find the disputed statements to be germane, temperate and factual. The Board’s order will therefore be enforced. Enforced. . No issue was raised in our case as to the factual validity of any of the statements to which the employer objects. . Sovern, The National Labor Relations Act and Racial Discrimination, 62 Colum.L.Rev., 563, 626 (1962). . See, e. g., NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946) ; NLRB v. Shirlington Supermarket, Inc., 224 F.2d 649, 651 (4th Cir. 1955). . Sovern, op. cit., at 563. .

For a discussion of organized labor’s discriminatory practices against Negroes, see Rosen, The Law and Racial Discrimination in Employment, 53 Calif.L.Rev. 729, 731-34 (1965). . C. Silberman, Crisis in Black and White, 11.