NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BANCROFT MANUFACTURING COMPANY, INC., and Croft Aluminum Company, Inc., et al., Respondents

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BANCROFT MANUFACTURING COMPANY, INC., and Croft Aluminum Company, Inc., et al., Respondents. No. 74-3052. United States Court of Appeals, Fifth Circuit. Oct. 10, 1975. Elliott Moore, Deputy Assoc. Gen. Counsel, Paul J. Spielberg, Atty., N. L. R. B., Washington, D. C., Charles M. Paschal, Jr., Director, Region 15, N. L. R. B., New Orleans, La., for petitioner. Gordon E. Jackson, W. Kerby Bowling, Memphis, Tenn., John H. White, Jr., McComb, Miss., for respondents. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC (Opinion July 28, 1975, 5 Cir., 1975, 516 F.2d 436). Before GOLDBERG, CLARK and GEE, Circuit Judges. [MAJORITY — PER CURIAM:] PER CURIAM: The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc. (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. [CONCURRENCE — GEE, Circuit Judge] GEE, Circuit Judge (specially concurring): I think we have correctly upheld the Board’s finding that the disputed remarks here were “in the nature of asides” that had virtually no inflammatory effect on the black employees. 516 F.2d at 442, 443. Hence I join in denying rehearing. I have joined in the majority’s reasoning, however, in the belief that it is consonant with my understanding of Sewell and the dictates of § 9(c). A party whose agent makes a racially-oriented statement during a union election' campaign should have the burden of proving it “temperate in tone,” “truthful and germane.” Failing this, he must show that the statement had no significant effect on racial passions and the election result. If he cannot, the election should be set aside and a new one ordered. I stress effect rather than intent because a spontaneous utterance can arouse racial feeling while calculated efforts may fail. Only the successful propagandist need concern us; here the Board has found we do not deal with one. . Sewell Mfg. Co.; 138 NLRB 66, 50 LRRM 1532 (1962). . Id. at 1535.