                                   REVISED
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                        _______________________

                              No. 96-60130
                        _______________________


                               TRENCOR, INC.

                                              Petitioner-Cross-Respondent,

                                     versus

                 NATIONAL LABOR RELATIONS BOARD,

                                              Respondent-Cross-Petitioner.


___________________________________________________________________

   Petition for Review and Cross-Application for Enforcement of
          an Order of the National Labor Relations Board
___________________________________________________________________
                           April 8, 1997

Before REYNALDO G. GARZA, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:
          Trencor,     Inc.,   a     manufacturer   of   heavy   construction

equipment petitions for review of the National Labor Relations

Board (the “Board”) order directing Trencor to bargain with the

United Steelworkers of America (the “Union”).               Trencor contends

because the Union promised “the biggest party in Texas” if it won

the election   and    dared    the    company   illegally   to   match   union

“guarantees” to workers, the election was tainted.                 The Board

cross-petitions for enforcement of its order. Although the Board’s

treatment of the “guarantees” was not unreasonable, the Board
failed to analyze the promise of a post-election party consistently

with the Regional Director’s facts and this court’s precedent.               We

must therefore deny enforcement of the bargaining order and remand

for further proceedings.

                              I.   Background

              On August 3, 1995, Trencor’s maintenance and production

employees voted on whether the Union would serve as their exclusive

collective-bargaining representative.             Of 99 eligible voters, 70

voted for representation and 26 voted against.1                Trencor filed

objections      to   the   election,       but,   after   an   administrative

investigation without a hearing, the NLRB Regional Director issued

a report recommending that Trencor’s objections be overruled and

that the Union be certified.               The Board adopted the Regional

Director’s recommendations and certified the Union as the exclusive

collective bargaining agent for the employees.

              After certification, Trencor refused to bargain with the

Union.   In November 1995, the Union filed an unfair labor practice

charge and the Regional Director subsequently issued an unfair

labor practice complaint. Trencor’s answer admitted its refusal to

bargain, but alleged that Union misconduct tainted the election and

that the Union’s certification was invalid.               In its February 26,

1996 Decision and Order, the Board granted the General Counsel’s

motion for summary judgment, concluding that Trencor’s objections


          1
          Nine ballots were challenged, but                 this   number   was
insufficient to affect the election outcome.

                                       2
were or should have been litigated in the representation proceeding

and   that   no   new   evidence    or   special      circumstances   warranted

reexamination     of    the     representation     proceeding.        The   order

affirmatively requires Trencor to bargain with the Union, post

appropriate notices, and comply with the Union’s requests for

information.

             On appeal, Trencor concedes that it has refused to

bargain, but challenges the Board decision to certify the Union.

Trencor’s     challenge       centers    on   three    alleged   improprieties

committed by the Union on the eve of the election.

                          II.    Standard of Review

             The Board’s decision will be upheld by this court if it

is reasonable and supported by substantial evidence in the record.

NLRB v. McCarty Farms, Inc., 24 F.3d 725, 728 (5th Cir. 1994).                The

Board is given a “wide degree of discretion” in resolving election

disputes. NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324,

328 (1946); NLRB v. New Orleans Bus Travel, Inc., 883 F.2d 382, 384

(5th Cir. 1989).        An objecting party must demonstrate that any

improprieties “interfered with the employees’ exercise of free

choice to such an extent that they materially affected the results

of the election.” NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30

(5th Cir. 1969).        See also NLRB v. Rolligon Corp., 702 F.2d 589,

592 (5th Cir. 1983) (“the need for a ... new election is judged not

against a standard of perfection, but against the likelihood that

the outcome of the election might have been affected”).                Since the


                                         3
Board resolved this issue at summary judgment without conducting a

hearing, we must accept all allegations presented by Trencor’s

evidence and all reasonable inferences in a light most favorable to

Trencor. McCarty Farms, 24 F.3d at 729.

                    III.   Alleged Union Improprieties

             A.   Promise of the “Biggest Party in Texas”

            Trencor complains that the Union offered conditional

inducements to win employee support in the election.            The day

before the election, Union agent Bill Fears told employees that if

the Union won the election, it would host “the biggest party in the

history of Texas,” and that the Union would buy “all the food and

beer.”   Trencor primarily relies on NLRB v. Lou Taylor, Inc., 564

F.2d 1173 (5th Cir. 1977), and Crestwood Manor, 234 NLRB 1097

(1978) to argue that such conditional inducements render the

election invalid.

            In Lou Taylor, this court enforced a Board order in which

the announcement of a company’s annual Christmas party in an

employer’s campaign speech the day before the election was found to

be illegal. 564 F.2d at 1175.      The company president promised that

there would be a Christmas party and “that the employees would be

paid for the time spent at the party and for the holiday.” Id.         An

administrative law judge and the Board found, and this court

affirmed,    that    the    announcement   improperly    influenced   the

employees’ choice despite the fact that the employer customarily

gave its employees a Christmas party.          Id.      The election was


                                     4
invalidated    notwithstanding      the    overwhelming   rejection    of   the

union. Lou Taylor, Inc., 226 NLRB 1024, 1030 n.10 (union received

only 38 of 223 votes cast).

            In Crestwood Manor, the Board invalidated an election

because of a union’s promise to hold a one hundred dollar raffle

for employees if the union won the election. 234 NLRB at 1097.              The

Board stated that:

            The   Employer    argues   that    since   the
            Petitioner’s raffle was conditioned upon
            Petitioner’s prevailing in the election, the
            Hearing Officer correctly concluded that it
            was a promise of benefit which requires
            setting aside the results of the election. We
            find merit in the Employer’s contention. ...
            If we were not to so find, we might well
            envision future elections in which employers
            and unions alike might be tempted to promise
            employees all sorts of inducements -- raffles,
            prizes, vacation trips, or whatever -- if
            their side won the election.          Such an
            intrusion into the election process would be
            highly undesirable.
            ***
            Even if it could be said that the raffle was
            worth only $1.18 [one in eighty-five chance of
            winning one hundred dollars] to each employee,
            we could hardly countenance an offer of $1 to
            each employee for a union victory or loss.

Id.

            The Board argues on appeal that a promise to hold a party

is qualitatively different from a promise to give a monetary

benefit.    Relying on the Third Circuit’s decision in NLRB v. L& J

Equipment Co., 745 F.2d 224, 231 (3d Cir. 1984),2 the Board asserts


     2
       The Board also relies on several other cases which do not involve parties
conditioned on a Union victory, but rather involve pre-election parties. Because
pre-election parties induce employees to hear the message of the sponsor and

                                       5
because they are not conditioned on the sponsor’s victory, the Board has tended
to allow them. See, e.g., Peachtree City Warehouse, Inc., 158 NLRB 1031, 1035-36,
1039-40 (1966) (employer-sponsored dinner with music, dancing, and liquor shortly
before election held proper); Lach-Simkins Dental Laboratories, 186 NLRB 671,
671-672 (1970)(union-sponsored free luncheon at the time and near the place of
polling held proper).
             The only two cases, other than L&J Equipment, that involve promises
of post-election parties or meal and alcohol purchases are Movsovitz & Son, Inc.,
194 NLRB 444, 78 LRRM 1656 (1971) and R.H. Osbrink, 114 NLRB 940 (1955). In
citing Movsovitz, the Board quotes the part of the decision stating that the
“Board has long since held that the supplying of meals or alcoholic beverages at
a party is not necessarily coercive or destructive of an atmosphere in which a
free choice can be made.”      78 LRRM at 1656.     However, the cases cited by
Movsovitz for the quoted proposition all involved pre-election purchases of meals
and beverages. See Lloyd A. Fry Roofing Co., 123 NLRB 86, 87 (1959) (union party
held the day prior to the election); Zeller Corp., 115 NLRB 762, 764 (1956)
(employer provided dinner for employees on company time without loss of pay three
days prior to election); Ohmite Manuf. Co., 111 NLRB 888, 888-89 (1955) (union
bought food and drink at tavern the night before the election).
             Movsovitz itself did involve a promise that a union employee “would
buy beer and whiskey for the Movsovitz employees” after the “Union won the
election.” 78 LRRM at 1656. The Board acknowledged that “the fact that such
promise was conditioned on a union victory in the election is troublesome,” but
went on to conclude that the promise involved a “type of minimal gratuity” that
“is not such an emolument as can reasonably be expected to influence the
employees’ free choice in the election.” Id. However, once again, the precedent
cited in support of this proposition involved a pre-election gift. See Jacqueline
Cochran, Inc., 177 NLRB No. 39, 71 LRRM 1395(pre-election gift of a turkey to
employees allowed since the purpose of the gift was to encourage attendance at
pre-election meeting). Furthermore, even though the Board did say in Movsovitz
that it was assuming the promise was made, the Board tipped its hand in the prior
paragraph, opining that “the only evidence of the alleged promise to purchase
beer and whiskey is the uncorroborated testimony of one witness, who was
discredited in other aspects of her testimony.         In such circumstances we
question whether such a promise was in fact made.” 78 LRRM at 1656.
             The Movsovitz rationale is difficult to square with the Board’s
diligent fight against conditional $1.18 gifts in Crestwood Manor. In any event,
Movsovitz does not help the Board since neither it nor the Regional Director ever
found that the Union’s promise of the “biggest party in the history of Texas” was
a “minimal gratuity” that would not influence the employee’s free choice. In
fact, the Regional Director stated that the Union’s promise “may have served as
a possible inducement to get employees to vote for the Union... .”
             In Osbrink, the union “distributed a leaflet in which it urged
employees to vote for it and then attend a victory party that evening.” 114 NLRB
at 942.   The opinion’s sole analysis of the issue is a recitation that the
Regional Director disagreed with the employer’s interpretation of the leaflet as
a “form of bribe” and “considered it to be a legitimate form of campaign
propaganda.” Id. The Board adopted the Regional Director’s recommendations. Id.
at 943. There is no indication in the opinion as to what was involved in the
“victory party,” particularly as to what, if anything, the union was purchasing
for the employees’ benefit. Furthermore, the Regional Director’s determination
in Osbrink that the leaflet was “propaganda” and not a “form of bribe” is
ambiguous: it could mean that the Regional Director did not believe the union
was actually planning to provide any sort of benefit to employees. The Osbrink
decision is also in tension with the Board’s later decision in Crestwood Manor.
In any event, the Regional Director’s determination in this case that the party
may have affected employee decisions distinguishes Osbrink.

                                       6
that offering a victory party is not necessarily “inimical to an

atmosphere in which free choice can be made.”                Promising a party

which   only   lasts    one   night,       the   Board    alleges,      would   not

“substantially influence employees in a decision having a major

effect on their working lives.” Id.              The Board distinguishes Lou

Taylor on the ground that the employees were to be paid for

attending the Christmas party, while in this case the victory party

was not coupled with a monetary benefit.                 Similarly, the Board

distinguishes Crestwood Manor, noting that the raffle represented

a direct financial benefit contingent on the union victory, a

notion the Board finds more offensive than the promise of a party.

           The Board’s reasoning on appeal might be persuasive if it

comported with the facts administratively found.                 But the Regional

Director’s recommendations, adopted in full by the Board, admitted

that the Union’s party invitation “may have served as a possible

inducement to get employees to vote for the Union.”                 The Regional

Director then concluded that “it does not amount to impermissible

coercion [in] the absence of a linkage between the party and either

a pre-election pledge of Union support or an actual vote for the

Union,”   citing   Nu    Skin   International,           Inc.,    307   NLRB    223

(overruling employer’s objection to union’s passing out t-shirts

before the election only to employees who signed a pro-union




                                       7
petition).   On appeal, the Board neither cites Nu Skin nor relies

on the Regional Director’s rationale.3

           Furthermore, Trencor contends that the monetary/non-

monetary distinction drawn by the Board is not meaningful, since

the benefits promised by the Union have some monetary value.

Trencor also points to potential problems with this distinction,

noting that substantial non-monetary benefits could potentially be

more problematic than the $100 raffle in Crestwood Manor.       The

Board itself warned of the temptation to offer “all sorts of

inducements” as a reason for finding the raffle to be illegal. 234

NLRB at 1097.

           Ultimately, we are persuaded that the Board can not adopt

the recommendation of the Regional Director, which notes that

offering a party conditioned on the Union victory “may have served

as a possible inducement to get employees to vote for the Union

...” but rests on flawed legal analysis, and then argue on appeal

       3
        Indeed, the Board would be hard pressed to pursue the
argument relied on by the Regional Director. Although offering
benefits conditioned upon a pre-election demonstration of an
employee’s support has certainly been scrutinized by the Board,
Crestwood Manor and other decisions clearly demonstrate that
offering benefits conditioned upon a union victory is inappropriate
whether or not a pre-election show of support is required.
Furthermore, Nu Skin involved a pre-election distribution of t-
shirts known to be of nominal value. 307 NLRB at 223. The Board
relied on the fact that the employees knew the t-shirts had nominal
value and that the Union had a legitimate interest in only
distributing shirts with union insignia to employees who actually
supported the union. Id. at 223-24. In contrast, as far as the
record suggests, the party promised to Trencor employees involved
an unknown, but potentially large, benefit, and the union had no
stated interest in promising the party other than to influence
employees’ votes.

                                 8
that offering a party could not reasonably have been seen as an

inducement.4           See Burlington Truck Lines, Inc. v. United States,

371 U.S. 156, 168-69, 83 S.Ct. 239, 246 (1962) (“The courts may not

accept appellate counsel’s post hoc rationalizations for agency

action; [Securities & Exchange Comm’n v.] Chenery [Corp., 332 U.S.

194, 196, 67 S.Ct. 1575, 1577 (1947)] requires that an agency’s

discretionary order be upheld, if at all, on the same basis

articulated in the order by the agency itself ...”).5 See also NLRB

v. Brookshire Grocery Co., 919 F.2d 359, 367 n.9 (5th Cir. 1990)

(“The        Board’s    order   can   be   sustained   only   on   the   grounds

articulated therein.”)



         4
       Both the dissent and the Board argue that the promise was
minimal and could not be expected to influence the election.
Nothing in the Regional Director’s findings indicates that the
benefit offered by the Union was “minimal.” Instead, the findings
acknowledge the possible influence of the party could have on
employees’ votes.    And, although the report concludes that the
offer “does not amount to impermissible coercion . . . ,” the legal
basis for that conclusion--that there was an “absence of linkage
between the party and either a pre-election pledge of Union support
or an actual vote for the Union ...” is completely abandoned by the
Board on appeal.    On appeal, the Board argues that any victory
party, regardless of any “linkage” between the promised benefit and
a Union victory, is permissible. The Board’s appellate lawyers
have not simply added citations to support the legal theory relied
on below, they have clearly changed the theory why the Union
activity was permissible.
     5
      The Burlington Truck Lines court went on to quote Chenery at length:
            A simple but fundamental rule of administrative law ***
            is *** that a reviewing court, in dealing with a
            determination or judgment which an administrative agency
            alone is authorized to make, must judge the propriety of
            such action solely by the grounds invoked by the agency.
            If those grounds are inadequate or improper, the court
            is powerless to affirm the administrative action ***.
            [Chenery, 332 U.S. at 196, 67 S.Ct. at 1577]
371 U.S. at 168-69, 83 S.Ct. at 246 (ellipses in original).

                                           9
              The Third Circuit decision in L&J Equipment makes the

salient point that a one day or one night event might not sway an

employee’s decision on a matter as important as whether to support

Union representation. 745 F.2d at 231.                However, L&J Equipment

could distinguish the Crestwood Manor raffle since the Third

Circuit    was    presented    with    a    Regional    Director    and   Board

determination, “after viewing all the evidence,” that “the victory

party   was    truly   meant   to   celebrate   any    victory   and   lay   the

groundwork for a productive union-employee relationship.” Id. at

231-32.    In contrast, the only determination in this case is that

the offer of a party “may have served as a possible inducement to

get employees to vote for the Union ... .”             There is no indication

in the record that the offered “biggest party in the history of

Texas” had anything to do with laying the “groundwork for a

productive employee-union relationship” or, indeed, was anything

more than an inducement to vote for the Union.            Although on appeal

the Board attempts to justify its decision by arguing that offers

of post-election parties categorically do not influence employees,

the record does not contain such a finding at any stage of the

proceedings.6




    6
      As the Burlington Truck Lines court stated: “[t]he short answer to this
attempted justification is that the Commission did not so find.” 371 U.S. at 168,
83 S.Ct. at 246.

                                       10
              Absent such a finding, this case is not meaningfully

distinct from Lou Taylor or Crestwood Manor.7         The Board stated in

Crestwood Manor that “[t]he conditioning of the receipt of benefits

on favorable election results is impermissible conduct for parties

engaged in the election.” 234 NLRB at 1097.           Even the potential

benefit of $1.18 per employee was considered impermissible by the

Board. Id.     Our court has also agreed with the Board that the offer

of a Christmas party that employees would receive vacation time to

attend, even though the employer had traditionally given its

employees a Christmas party, was an impermissible inducement when

announced the day before the election. Lou Taylor, 564 F.2d at

1175.     It is not unreasonable to infer that the Union’s offer in

this case, also made on the day before the election, represented as

much or more economic benefit per employee than the $1.18 in

Crestwood Manor or possibly even the unspecified amount in Lou

Taylor.       The Regional Director drew this inference.         The Board

cannot    acknowledge   the   potential   influence    of   a   conditional

inducement by adopting the Regional Director’s decision and then




          7
         We are not, as Judge Garza suggests, indicating that
Crestwood Manor overruled prior Board decisions that have addressed
the circumstances in which parties are permissible.       Crestwood
Manor holds that even minor inducements conditioned on a union or
company victory can be improper. The few prior Board decisions
that have addressed parties offered on the condition of a union
victory, as discussed in note 2, supra, rested on case-specific
Board findings that the party offered could not reasonably have
been perceived as an inducement to vote for the Union. There is no
such finding here.

                                    11
expect this court to affirm because it is supposedly axiomatic that

this type of inducement does not influence employees.

          Accordingly, we cannot uphold the Board’s decision to

overrule Trencor’s objection on this issue.         Trencor has presented

prima facie evidence that the Union conditioned “the receipt of

benefits on favorable election results,” which “is impermissible

conduct for parties engaged in the election.” Crestwood Manor, 234

NLRB at 1097.    See also Lou Taylor, 564 F.2d at 1175.       We must set

aside the order of the Board and remand for an evidentiary hearing

and analysis consistent with this court’s precedents.

                       B.   Union “Guarantees”

          On August 2, 1995, the day before the election was to be

held,   the   Union   distributed        flyers   that   listed   numerous

“guarantees” by the Union.       The purported guarantees included

several matters related to Union membership, such as Union dues

payments, the right of employees to resign from the Union, the

right of employees to file unfair labor practice charges against

the Union, and a pledge to seek employee approval of any negotiated

collective bargaining agreement.     The Union also “guaranteed” that

upon its victory, employees’ wages, benefits and working benefits

would not suffer, and that the Union had negotiated improved terms

for employees in every prior first contract negotiation. The Union

representative, Bill Fears, signed his name under each guarantee,

referring to the document as a signed contract between the Union

and employees.


                                    12
             Trencor alleges that by making the guarantees, the Union

offered   employees       “a    financial    benefit   to    which      they   would

otherwise not be entitled” in the critical period prior to the

election, thereby violating Board rules governing elections. See

Mailing Services, Inc., 293 NLRB 565 (1989).                We disagree.

             The   Board   decision     to    overrule   this      objection     was

reasonable.        Unions are permitted to promise the extension of

existing membership benefits to employees.                   Dart Container of

California, 277 NLRB 1369 (1985).            Unlike Mailing Services, where

free health screening, an existing Union benefit, was actually

given   to   employees     before     the    election,   this      is   merely   an

unremarkable promise to extend Union benefits to employees after

the Union’s election. 293 NLRB 565 (1989). Unions may also promise

to obtain better terms in the future. NLRB v. Golden Age Beverage,

415 F.2d 26, 30-31 (5th Cir. 1969) (union’s promised improvements

“fell within the category of customary and legally unobjectionable

preelection    propaganda”).          Trencor’s   objection        to    the   Union

“guarantees” is without merit.

                     C.        Union’s “Catch 22" Tactics

             Trencor’s     better     argument    relates     to     the   Union’s

challenge to Trencor executives to make guarantees similar to those

offered by the Union.8            Companies are not allowed to make such

    8
      The Union challenged Trencor officers to sign and date seven
statements:
     1.   I guarantee the company will never cut wages,
     benefits, or other working conditions now in effect,
     unless it is voted on and accepted by a majority of

                                        13
promises in the period immediately preceding an election,9 and


     workers here at our plant. (The same right union members
     have).
     ***
     2.   I guarantee the company will not increase the
     employees portion or co-pay for insurance costs, and will
     not reduce the present benefits under this plan ever.
     ***
     3.   I guarantee the company will select all future job
     openings by seniority and qualifications, rather than
     using the favoritism system we now use. Also if there is
     a difference of opinion in the selection process, the
     affected party can file a grievance up to and including
     arbitration to obtain justice.
     ***
     4.   I guarantee the company will end all favoritism in
     the plant, and treat all workers fairly and equally and
     stop the special treatment of a few favorites.
     ***
     5.   I guarantee in the future the company will notify
     all workers by Thursday of any weekend overtime, or
     workers will not be forced to work it, if they choose.
     ***
     6.   I guarantee any worker having a grievance on wages,
     benefits, or other working conditions, including any
     disciplinary actions, will have the right to present his
     or her grievance to top management and if it is not
     resolved to the workers satisfaction, the worker shall
     have the right steelworker members have to present the
     grievance to an impartial arbitrator accepted by both
     sides, whose decision will be final and binding on the
     company and the worker.
     ***
     7.   Finally, I guarantee the company will allow every
     worker a full voice and vote on all matters pertaining to
     wages, benefits, and all other working conditions. (The
     same right steelworker union members have).
     ***
     If company officials will not sign each and every
     guarantee, how can you protect yourself without having
     these basic rights? ...

      9
       See NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964)
(“conduct immediately favorable to employees which is undertaken
with the express purpose of impinging upon their freedom of choice
for or against unionization” is illegal) and NLRB v. Varo, Inc.,
425 F.2d 293, 298-99 (5th Cir. 1970) (plant manager’s preelection

                                14
Trencor argues this challenge put the company in the untenable

position of either making illegal promises or appearing to back

down from the Union.

          Trencor responded to the challenge by printing its own

leaflet disputing the Union’s guarantees and pointing out that it

was prohibited by law from making any type of similar promises.

Trencor alleged that Union agent Bill Fears wrote handwritten

responses on the face of Trencor’s leaflets.   Trencor produced one

such altered leaflet on which someone had handwritten in the

margins10 that: “THE COMPANY CAN GIVE IT’S [sic] EMPLOYEES A

CONTRACT WITHOUT A UNION BEING INVOLVED.    IF IT CARED ABOUT ITS

WORKERS & WANTED THEM TREATED FAIRLY.” (emphasis in original).

Trencor alleges that this alteration of its leaflet occurred on the

morning of the election, denying Trencor the opportunity to respond

to this misrepresentation and putting Trencor in a “false light”

because it followed the law. Thus, Trencor argues, the “laboratory


statement that “[i]f money is all you people are concerned with,
you don’t have to go through all of this trouble to get it” was an
illegal promise of benefits in violation of § 8(a)(1) of the Labor
Management Relations Act).
    10
      The handwritten text was connected by an arrow to the typeset
text of the company’s flier which read:
     Please understand this; the company by law cannot
     guarantee or promise you anything to get you to vote
     against the Union. What the Union salesman is doing is
     trying to get the company to violate the law by
     guaranteeing or promising you something so that if it
     loses the election it can possibly become your
     representative even though you don’t want it.         The
     company will not violate the law and will not promise or
     guarantee anything.
(Emphasis in original).

                                15
conditions”    necessary       for    the     employees’    free        choice   were

destroyed.    See    Home    Town    Foods,    416   at   396    (5th    Cir.    1969)

(“‘laboratory conditions test’ represents an ideal atmosphere in

which a free choice may be made by employees, protected from

interference by employer, union, Board agent, or other parties”;

key is “whether the employees were permitted to register a free

choice”).

            The Board counters that Trencor’s responsive leaflet

apprised the employees of its views on the Union guarantees and the

legal   restrictions        keeping    the     company    from    making     similar

promises, thereby rebutting the notion that it was backing down

from the Union challenge.           The Board also argues that there is no

evidence that the handwritten message on Trencor’s leaflet came

from a Union agent or was widely distributed.                     Ultimately, the

Board relies on Midland Nat’l Life Ins. Co., 263 NLRB 127, 131-33

(1982), in which the Board decided that it would “no longer probe

into the truth or falsity of the parties’ campaign statements and

[would not] set elections aside on the basis of misleading campaign

statements.”        The   Board     contends    that   because     the    thrust   of

Trencor’s complaint about the Union challenge is that it was

misleading, the Midland doctrine applies and the Board will not

invalidate the election on this basis.




                                        16
          Accepting   Trencor’s   allegation   that   the   Union   was

responsible for the election day message,11 we must decide if the

Midland doctrine bars a challenge to the election.      This circuit

has yet to approve fully the Midland doctrine.12      Only one Fifth

Circuit case cites Midland. See NLRB v. Rolligon Corp., 702 F.2d

589, 597 (5th Cir. 1983).    In Rolligon, this court overruled an

election challenge where the union misused Board subpoenas two

months before the election. Id. at 596-97.       Although the court

condemned the union’s actions, the court agreed “with the Board

    11
      The Board argues on appeal that there is no evidence of Union
involvement with the handwritten notes on Trencor’s leaflets. This
borders on the ridiculous. At the top of the same defaced leaflet,
in the same handwriting, is written “TRENCOR, WHY DID YOU CUT OFF
THE TOP PART OF THIS HANDBILL WE PUT OUT? IS IT [sic] ‘GUARANTEE’
WAS IN BIG CAPITAL LETTERS?” (emphasis in original). Surely, the
reference to the “HANDBILL WE PUT OUT” supports the inference that
the Union, who put out the prior handbill, also was responsible for
the handwritten messages on Trencor’s leaflet. Even if this was
not patently obvious, the Board is required to take Trencor’s
allegations as true given that the Board entered summary judgment
for the Union without a hearing. McCarty Farms, 24 F.3d at 729.
The Regional Director’s report and recommendation, adopted by the
Board, accepted the company’s allegations as true, and the Board
must continue to do so on appeal.
    12
      Three other circuits have adopted the Midland doctrine. See
NLRB v. Semco Printing Ctr., Inc., 721 F.2d 886, 892 (2d Cir.
1983); NLRB v. Monark Boat Co., 713 F.2d 355, 360 (8th Cir. 1983);
NLRB v. Yellow Transp. Co., 709 F.2d 1342 (9th Cir. 1983).
However, two other circuits, while approving the Board’s decision
in a particular case, held that an election might be overturned
where “the misrepresentation is so pervasive and the deception so
artful that employees will be unable to separate truth from untruth
and where their right to a free and fair choice will be affected.”
Van Dorn Plastic Mach. Co. v. NLRB, 736 F.2d 343, 348 (6th Cir.
1984) (citing NLRB v. New Columbus Nursing Home, Inc., 720 F.2d
726, 728 (1st Cir. 1983); See also NLRB v. Hub Plastics, Inc., 52
F.3d 608 (6th Cir. 1995) (remanding to require NLRB to determine
whether union misrepresentation fell within Van Dorn exception to
Midland).

                                  17
that setting aside an election in which sixty-three percent of the

workers have chosen the union as their representative is not the

proper remedy.” Id. at 597.              The court voiced support for the

rationale       of   Midland,     noting      that   employees     are   “‘mature

individuals who are capable of recognizing campaign propaganda for

what it is and discounting it.’” NLRB v. Rolligon Corp., 702 F.2d

589, 597 (5th Cir. 1983) (quoting Midland, 263 NLRB at 132 (quoting

Shopping Kart Food Market, 228 NLRB 1311 (1977))).                 However, this

court        ultimately   based    its     decision     on   the    impact    the

misrepresentation would have on the election,13 concluding that

there was “substantial evidence in the record to support the

Board’s conclusion that the union’s misconduct was not likely to

have created the impression that the Board favored one party over

another.” Id.        Important to the court’s conclusion was the fact

that the company had two months to respond to the union misconduct

but failed to do so. Id. at 596.

               Trencor urges that Midland is inapplicable because it is

not alleging a simple misrepresentation, but rather is objecting to

        13
       The court noted that “both the Board and the courts have
shown a reluctance to ‘censor or police campaign propaganda unless
the misrepresentations are so substantial that the uncoerced
desires of the employees cannot be determined.’” Rolligon, 702 F.2d
at 597 (quoting NLRB v. Muscogee Lumber Co., 473 F.2d 1364, 1367
(5th Cir. 1973)).




                                         18
the Union’s challenging Trencor to make illegal promises on the eve

of the election.     Trencor contends the illegal challenge falls

outside the category of misrepresentation and within the category

of “campaign conduct, such as threats, promises, or the like, which

interfere with employee free choice” and which the Board is still

pledged to protect against under Midland. 263 NLRB at 131-33.     We

disagree.

            The Board’s decision to uphold the election on this basis

is supported by substantial evidence in the record. Although it is

unnecessary to decide the full scope of this court’s support of the

Midland doctrine, we rely on the overarching principle, recognized

in Rolligon, that employees must generally be trusted to sort

through election propaganda and posturing in deciding how to vote.

Contrary to Trencor’s protestations, the gravamen of its complaint

is that the Union challenge was misleading, i.e., it put Trencor in

a “false light.”     Trencor’s efforts to place the Union conduct

outside     the   “misrepresentation”    framework   fail   because,

irrespective of the outer bound of the Midland doctrine, Trencor

has not demonstrated that the Union conduct was so deceptive that

it inhibited employee free choice.        Accordingly, the Board’s

application of the Midland doctrine to this case was within the

wide discretion granted to the Board by Congress.        The Union’s

attempt to challenge Trencor to do something that the Union surely

knew the company could not do, on the eve of the election, is not




                                  19
an honest tactic and certainly not one that should be condoned.14

However, in this case, Trencor was able to respond to the Union’s

challenge with its own leaflets outlining the company’s position.

The fact that the Union placed handwritten messages on some or all

of the company’s leaflets did not prevent employees from reading

the claims of both sides and making their own determinations.15   We

cannot conclude that “the misrepresentation is so pervasive and the

deception so artful that employees will be unable to separate truth

from untruth and ... their right to a free and fair choice will be

affected.” See Van Dorn Plastic, 736 F.2d at 348.




         14
       Trencor also contends that it not so much the misleading
Union challenge as its last-minute timing that is objectionable.
The company relies on the Kalen Construction Company, Inc., 321
NLRB No. 94, 1996 WL 387382 (1996), in which the Board recently
prohibited companies from changing their paycheck policies as a
campaign tactic within 24 hours of a union election. While Kalen
imposes a restraint on this particular type of electioneering
“speech,” and could be vulnerable for that reason, the decision
specifically does not apply to “the circulation of campaign
literature at any time prior to an election.”
    15
       The handwritten response to Trencor’s statement that the law
barred the company from making promises in the period before an
election, when read critically, acknowledges by omission that
Trencor’s statement was accurate. The Union response only states
that Trencor could make the requested promises “without a union
being involved.” See supra, note 10.      Although suggesting that
Trencor could make the disputed promises, the response does not
actually dispute the substance of Trencor’s statement. This is not
to say that the handwritten response is completely truthful, but we
assume that employees can recognize the slanted rhetoric.

                                20
                              CONCLUSION

          For   the   foregoing   reasons,   DENY   the   Board’s   cross-

petition for enforcement of its bargaining order, and REMAND for

further proceedings as described above.

          ENFORCEMENT OF BOARD ORDER DENIED; CASE REMANDED.




                                   21
REYNALDO G. GARZA, Circuit Judge, dissenting.

     While I concur with the majority’s treatment of the union’s

guarantees and its alleged “Catch-22" campaign tactics, I cannot

concur with its treatment of the alleged promise of a party and

therefore respectfully dissent from its refusal to grant the

Board’s petition for enforcement.     My disagreement extends to

several points, as I explain below.

     In his report on Trencor’s objections to the election, the

Regional Director for Region 16 stated as follows with respect to

the issue of the party:

          In support of this objection the Employer provided an
     employee witness who testified that a Union representative
     told an employee, a Union supporter, that when the Union won
     the election they were going to have the biggest party in the
     history of Texas and that he would buy all the food and beer
     for them.   The Union employee supporter then, on or about
     August 2, 1995, told the Employer witness about the party.

          Assuming the Union representative made the above
     statements at some point prior to the election about a
     prospective party and even assuming the employee who told of
     this party was an agent of the Union, such would not be a
     basis for setting the election aside.

          While the party referred to may have served as a possible
     inducement to get employees to vote for the Union, it does not
     amount to an impermissible coercion of the absence [sic] of a
     linkage between the party and either a pre-election pledge of
     Union support or an actual vote for the Union. Accordingly,
     the alleged prospective party cannot be a basis for setting
     the election aside. See Nu Skin International, Inc., 307 NLRB
     No. 46.    Accordingly, it is recommended this objection be
     overruled.




                                22
(emphasis added).     The Board adopted the Regional Director’s

findings and recommendations and overruled Trencor’s objections to

the election.

     The majority states that the Board’s legal analysis is flawed,

and estops the Board from supplementing its legal citation with

additional cases to demonstrate the consistency with which it has

treated this issue.   The majority also relies upon language in the

Board’s decision that the party “may have served as a possible

inducement.”    The majority states: “Ultimately, we are persuaded

that the Board cannot adopt the recommendation of the Regional

Director, which notes that offering a party conditioned on a Union

victory ‘may have served as a possible inducement’ but rests on a

flawed legal analysis, and then argue on appeal that offering a

party could not reasonably have been seen as an inducement.”   Maj.

op. at 8-9.     The majority goes on to reject the Board’s legal

argument by stating that “[t]he Board’s reasoning on appeal might

be more persuasive if it comported with the facts administratively

found.”   Maj. op. at 7.

     The majority errs in its treatment of the Board’s opinion.

First, the language the majority alludes to is not a finding of

fact on this issue.    Even if it was, it is of no legal import

because the Board determined that even if true, Trencor’s objection

failed    as    a   matter   of    policy   because   the   alleged

inducement—offering a victory party—was not an improper inducement,

i.e. one that would serve as a ground for setting aside the


                                  23
election. Second, the majority finds error in the Board’s adoption

of the report when legal authority cited within it is not exactly

on point.   Essentially, the majority holds that the Board is

estopped from not relying specifically on the Nu Skin case and the

Board’s analysis therein.   What the majority overlooks is that the

Board’s opinion in Nu Skin did nothing more than discuss the topic

of unlawful inducements in light of guidance provided by the

Supreme Court in NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), the

Court’s only decision in this area.   Moreover, the Board’s task in

an election challenge is not a quest for on-point precedent, but to

make an ad hoc determination based on the facts presented or, as

here, alleged.   See Lach Simkins Dental Labs., 186 NLRB 671, 672

(1972) (Board will approach the question of whether “laboratory

conditions” have been upset on a case-by-case basis).

     The Board’s opinion states that the promise was minimal and

could not have been expected to influence the election.    In this

court, the Board argues that the promise was minimal and could not

be expected to influence the election. The Board’s appellate brief

certainly expresses its position much better than does its opinion

in this case, but there is no requirement that the two documents be

identical. In its petition for review, the Board provides a number

of cases setting forth the Board’s long-held position that an

employer or union’s simple promise to have a party is not improper,

to bolster its argument here that it properly determined the

promise of the party was an inducement of de minimis proportions.


                                24
This is not a case where a new legal argument is being introduced

into the mix. Rather, the NLRB General Counsel has done additional

research for this court and supplied the on-point legal citations.

      The majority is quite correct that agencies are not permitted

to   justify   their     actions   in   a    judicial   review    proceeding   on

different grounds than those they relied upon at the time of that

action.    For us to sanction this sort of post hoc rationalization

would allow agencies to engage in unprincipled decision making and

would make us their accomplice.               But this is not the type of

situation the Court had in mind when it decided Chenery and

Burlington Truck Lines.        The Court has stated that “[w]hile we may

not supply a reasoned basis for the agency’s action that the agency

itself has not given, we will uphold a decision of less than ideal

clarity if the agency’s path may reasonably be discerned.”                Bowman

Transp. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285-86 (1974);

see also State of Texas v. United States, 756 F.2d 419, 427 (5th

Cir.), cert. denied, 474 U.S. 843 (1985).               Because I believe “the

agency’s    path   may    be   reasonably      discerned,”    I   would   reject

Trencor’s argument that the Board’s appellate argument does not

match the reasons guiding its opinion.

      In addition to its Chenery argument, the majority goes further

and states that the Board’s decision is foreclosed by the decision

of our court in NLRB v. Lou Taylor, Inc., 564 F.2d 1173 (5th Cir.

1977).     In that case, the Board sought enforcement of an order

finding that an employer violated section 8(a)(1) of the Act and


                                        25
requiring a new election where an employer told its employees

before the election that it would pay them to attend its Christmas

party and would also pay them for the holiday.   The Board ordered

the new election “despite the Company’s contention that Christmas

parties were not new benefits and there were valid reasons for the

absence of Christmas parties in the preceding years.”   Id. at 1175.

If the employer’s argument that the party itself was not improper

was of no concern to the Board or to us in our review of its

decision, it is abundantly clear that our decision rested on the

fact that a monetary benefit was conferred to the employees.    The

Board has consistently held that parties may not buy votes.    See,

e.g., NLRB v. Exchange Parts Co., 375 U.S. 405 (1964) (employer’s

conferral of benefit violated section 8(a)(1)); Crestwood Manor,

234 NLRB 1097 (1978) (“laboratory conditions” case holding union’s

promise to hold $100 raffle to be an improper inducement).      The

Board has also consistently held that it can be an unfair labor

practice for an employer to withhold an ordinarily granted benefit,

such as hosting a Christmas party, during the pendency of a

campaign.   An employer’s assertion that the benefit conferred is

one it has always given operates as an affirmative defense to an

8(a)(1) charge.   That the Board still found a violation makes it

plain that the objectionable activity in that case was the promise

of a paid holiday and paid attendance.16

    16
        The majority’s misinterpretation of this case carries over
to its refusal to force Trencor to meet its burden of demonstrating
that the alleged impropriety by the union influenced the outcome of

                                26
       The majority does not find it sufficient, however, to rest on

the arguments discussed above, and proceeds to reject the Board’s

position on this issue. It essentially determines that the Board’s

Crestwood Manor decision overruled, by implication, all previous

Board decisions in which an inducement of $1.18 or more was found

to be unobjectionable.     Maj op. at 4-11 & nn.2-3.         As a consequence

of this, the majority must be arguing (although it does not state

that   it   is)   that   this   has   caused   the   Board    to   be   acting

inconsistent with its own precedent, a basis for us to approach its

present position with skepticism.          See I.N.S. v. Cardoza Fonseca,

480 U.S. 421, 446 n.30 (1987) (“An additional reason for rejecting

the INS’s request for heightened deference to its position is the

inconsistency of the positions the BIA has taken through the

years.”); Shaw Supermarkets v. NLRB, 884 F.2d 34 (1st Cir. 1989)

(Board must explain departure from precedent).                Even were this

argument valid, the Board must have in turn overruled the Crestwood


the election, a requirement in “laboratory conditions” cases such
as this one. See, e.g., NLRB v. McCarty Farms, 24 F.3d 725, 728-30
(5th Cir. 1994); Vicksburg Hosp. v. NLRB, 653 F.2d 1070, 1075 (5th
Cir. Unit A 1981) (“[e]stablishing that the objectionable
activities ‘either tended to or did influence the outcome of
election’ is especially difficult where, as in the case of the
Vicksburg Hospital election, the union won by a wide [148-66]
margin.”) (citations omitted). As Lou Taylor is a section 8(a)(1)
case, the remedy ordered there cannot be transplanted to a
“laboratory conditions” case because a different standard applies.
The Board almost invariably overturns an election where it finds
unfair labor practices were committed during the pre-election
period. Dal-Tex Optical Co., 137 NLRB 1782 (1962). See Sinclair
Co., 164 NLRB 261 (1967), enforced, 397 F.2d 157 (1st Cir. 1968),
aff’d sub nom. NLRB v. Gissel Packing Co. 395 U.S. 575 (1969), for
a discussion by the Board which separates the two standards within
a particular case.

                                      27
Manor      decision       and   abandoned    this   “$1.18     rule”      (again    by

implication), because it held fourteen years later in Nu Skin that

the     promise      of     t-shirts     (costing    from     $4     to    $5)      was

unobjectionable.17

      The Supreme Court has long emphasized that, because the Board

is the expert body in the field of labor relations, we are to give

“considerable        deference”     to    the    Board’s    position      on   policy

determinations and are not to disturb it “as long as it is rational

and consistent with the Act.”            NLRB v. Curtin Matheson Scientific,

494   U.S.    775,     786-87     (1990).        Stated    another     way,    as    an

administrative agency, the NLRB is entitled to the deference

announced by the Court in Chevron U.S.A. v. Natural Resources

Defense Council, 467 U.S. 837, 844 (1984).                See ABF Freight Sys. v.

NLRB, 114 S. Ct. 835 (1994) (“When Congress expressly delegates to

an administrative agency the authority to make specific policy

determinations, courts must give the agency’s decision controlling

weight unless it is ‘arbitrary, capricious, or manifestly contrary

to the statute.’); Stardyne, Inc. v. NLRB, 41 F.3d 141, 147-48 (3d

Cir. 1994) (Board’s case-by-case adjudications to fill gaps in Act

are analyzed under Chevron).             We also look to the consistency with

which the Board has acted as a factor in deciding whether the

      17
        The majority’s attempt to distinguish Nu Skin by noting it
was a pre-election benefit is unpersuasive, as is the extended
footnote in which it attempts to cast doubt upon forty years of
Board precedent because of a difference between pre- and post-
election benefits that it believes renders suspect the Board’s
citation of one in the context of the other. Maj. op. at 6-7 nn.
2-3.

                                            28
agency’s action should stand.    Cardoza Fonseca, 480 U.S. at 446;

NLRB v. New Jersey Bell Tel., 936 F.2d 144, 147 (3d Cir. 1991).

     Nowhere, perhaps, is this deference greater than when the

issue is whether the “laboratory conditions” of the election are

alleged to have been upset.   Section 9 of the Act gives the Board

“the broad duty of providing election procedures and safeguards for

elections and a wide discretion in determining when conduct did or

did not jeopardize the untrammeled expression of employee free

choice.”   NLRB v. Sanitary Laundry, 441 F.2d 1368, 1369 (10th Cir.

1971).    The issue before us today, whether the promise of a party

is the type of benefit that could reasonably have tended to

influence the employees’ decision, represents “precisely the type

of minor, detailed, interstitial question of labor election policy

that Congress asked the Labor Board, not the courts, to decide.”

NLRB v. Labor Services, Inc., 721 F.2d 13, 18 (1st Cir. 1983)

(Breyer, J., dissenting).

     In rejecting the Board’s determination here, the majority

places this court at odds with the positions taken by our sister

courts.    The Third Circuit considered this precise issue in NLRB

v. L&J Equipment Co., 745 F.2d 224 (1984), and, despite the

majority’s attempt to distinguish it, found the policy to represent

a reasonable exercise of its powers.   The majority states that the

crucial difference between that case and the one before us today is

that the Board there made a fact finding that the purpose of the

election was to celebrate victory and “lay the groundwork for a


                                 29
productive employee-union relationship.”          In so distinguishing it,

however,    the   majority   by-passes   precedent    of   our   court   that

specifically rejects the “intent to influence” test in favor of the

“tendency to influence” test that the Board argues before us today.

See NLRB v. McCarty Farms, 24 F.3d 725, 731 n.5 (5th Cir. 1994)

(discussing the standard).       The Third Circuit, incidentally uses

the same standard we use, NLRB v. Clearfield Cheese Co., 322 F.2d

89, 93-94 (3d Cir. 1963), making it rather difficult to distinguish

its opinion there on the basis that it relied upon the “purpose” as

being a satisfactory one. Because the Third Circuit’s decision is,

therefore,    indistinguishable     from    the    situation     here,    the

majority’s opinion creates a split with our colleagues on that

court.     The majority’s conclusion also conflicts with favorable

commentary on the Board’s position on this issue from the First

Circuit.    Labor Services, 721 F.2d at 17 (Board “properly held” in

Movsovitz that promise to buy beer and wine after election “could

not reasonably be expected to have influenced the employees’ free

choice.”)

     Reviewed under the proper standard, the Board’s policy must

stand.   Its position has been uniform for decades, as the majority

opinion clearly demonstrates.        Maj. op. at 6-7 n.2.           Because

Congress did not mandate an outcome here but expressly left it to

the Board to decide, it cannot be said that its determination is

“manifestly contrary to the statute.” Its determination is neither

arbitrary nor capricious.        We have previously recognized “that


                                    30
clinical asepsis is an unattainable goal in the real world of union

organizational efforts,” and accordingly are “conscious of the

‘realities    of   industrial       life’    in    our    application               of    the

controlling    standard.’”        McCarty    Farms,      24    F.3d       at    728        n.2

(citations omitted).        The Board has distinguished money payments

from parties on the ground that the former closely resembles a

bribe, while it is highly unlikely employees will vote against

their better interests merely on the promise of a party.                             As the

majority recognizes in its discussion of the Board’s Midland

decision, employees must be viewed as mature individuals. Maj. op.

at 16-19.    As such, the union organizer’s Texas-sized boasts about

the party aside, the Board’s determination that the promise of the

party was not one that destroyed the laboratory conditions of the

election is entirely reasonable and should be upheld.

      In sum, I believe that the Board’s opinion reflects the same

argument it advances on judicial review, that its position is not

foreclosed by any precedent of our court, and that the Board’s

position is not “arbitrary, capricious, or manifestly contrary” to

the   Act.     The    employees’      70-26       vote    in    favor          of        union

representation     should    be    upheld.        Accordingly,        I    would         deny

Trencor’s petition for review and would grant the Board’s cross-

petition for enforcement of its order.




                                       31
