NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,538, ZARTIC, INC. and INTERNATIONAL UNION OF ELECTRONIC, ELECTRICAL, TECHNICAL, SALARIED, MACHINE AND FURNITURE WORKERS, IUE, AFL-CIO., (Oct. 31, 1994), National Labor Relations Board, (Oct 31, 1994)

ZARTIC, INC. and INTERNATIONAL UNION OF ELECTRONIC, ELECTRICAL, TECHNICAL, SALARIED, MACHINE AND FURNITURE WORKERS, IUE, AFL-CIO.

315 NLRB No. 63.Case No. 10-RC-14199. October 31, 1994

Before Gould, Stephens and Devaney.

Elections--Rerun--Union’s Derogatory Audiotape.--An employer’s union representation election objection, based upon the union’s use of inflammatory leaflets and an audiotape that assertedly containing the employer’s derogatory statements about Hispanic employees attributed to a management official, was well taken. A second election was ordered because the union’s intent was to exploit the ethnic fears of Hispanic employees by making a visceral connection between the Ku Klux Klan and working conditions, which so tainted the election as to render a fair election impossible. Section 9(c).

Back reference: ¶2790.034.

From Text of Board’s Decision

The National Labor Relations Board, by a three-member panel, has considered the Employer’s objection to an election held February 7, 1992, and the report (attached as an appendix) recommending its disposition. The election was conducted pursuant to a Decision and Direction of Election. The revised tally of ballots of May 27, 1992, shows 279 for and 244 against the Petitioner, with 21 challenged ballots, a number insufficient to affect the results of the election. On December 3, 1992, the Board, by an unpublished decision, affirmed the Regional Director’s determination overruling the Employer’s several objections to the election, with the exception of Objection 1, which was remanded to the Regional Director for a hearing. The hearing was held on February 3 and 4, 1993, and the attached report of the hearing, recommending the overruling of Objection 1 and certification of the Union, issued on September 1, 1993. The Employer filed exceptions and a supporting brief, and the Union filed a brief in opposition to the exceptions.

The Board has reviewed the record in light of the exceptions and briefs, and adopts the findings and recommendations contained in the report only to the extent consistent with this decision.

The issue posed by the Employer’s Objection 1 is whether the Union’s use of an audiotape, assertedly containing derogatory statements about Hispanic employees attributed to a management official, and/or two leaflets, which assertedly linked the Employer to the Ku Klux Klan, constituted a sustained, irrelevant, inflammatory appeal to the ethnic sentiments of the Employer’s Hispanic employees which so interfered with election conditions that the election must be set aside. As fully set forth below, we find this conduct objectionable, and we will direct a second election.

As a preliminary matter, we note that the hearing officer who conducted the hearing subsequently became unavailable to write the report. Accordingly, an attorney in the Regional Office reviewed the record and the parties’ posthearing briefs, and produced the attached report (the Board Attorney’s Report, BAR). In their briefs to the Board both the Employer and the Union point out that the credibility resolutions contained in the BAR, not based on witness demeanor, are open to broad scrutiny by the Board. On review of the record, it is apparent that a number of significant factual issues, including questions involving credibility, either were not resolved in the BAR or were resolved in a manner lacking adequate support in the record. Accordingly, in setting forth the facts relevant to our determination, we have carefully evaluated the record in its entirety and, where appropriate, made credibility resolutions consistent with that evaluation. See, e.g., El Rancho Market, [1978-CCH NLRB ¶19,152] 235 NLRB 468, 470 (1978), enfd. mem. [87 LC ¶11,593] 603 F.2d 223 (9th Cir. 1979); cf. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957); Standard Dry Wall Products, 91 NLRB 544, 545 (1950), enfd, [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951).

Facts

The Union is seeking to represent a single bargaining unit of production and maintenance employees in the Employer’s two poultry-processing plants--one in East Rome, the other in West Rome, Georgia. There are about 200 employees in the East Rome plant and about 400 in the West Rome plant. There is a large percentage of Hispanic employees among those in the unit sought by the Union: between 75 and 90 percent of the employee complement at the East Rome plant and about 50 percent at the West Rome facility. The majority of the Hispanic employees are recent immigrants; most cannot read or speak English. The Union’s organizing campaign began in late fall 1991 and culminated in a Board election on February 7, 1992. The Union prevailed in the final ballot tally, 279 votes to 244.

In late November 1991, employee Chad Peck, who worked at the East Rome plant, secretly audiotaped a conversation he had with Steven Mayes, a management official. [1] On the tape Mayes recounts a conversation he had with Francois Gaulin, who formerly had been plant manager at the East Rome facility and who in fall 1991 was a special projects manager assigned to that plant. According to Mayes, Gaulin said “... you got to push these people. It’s hard for these people to sleep on the floor of a trailer that ain’t got no damn electricity. They’re the closest things to animals they could be. He said, you’ve got to treat them that way.” Peck told employees and union officials about the tape. It is apparent that in describing it he claimed that “these people” was a reference to the Employer’s Hispanic employees.

In early to mid-January 1992, the Union, and especially Union Organizer Rudy Rodriguez, became interested in the tape. Rodriguez was assigned to the organizing campaign in early January and given responsibility for the East Rome plant. He obtained a copy of the tape from Peck [2] and played it for employees at several union meetings. It is unnecessary to determine the exact details of the Union’s use of the tape, such as the number of union meetings at which it was played and/or discussed, the number of employees attending, or the specific manner in which the Union represented the contents of the tape to the employees. Overall, it is clear on this record, and sufficient for our evaluation of this case, that the Union used the tape repeatedly as an organizing tool in the weeks immediately preceding the election.

On January 29, 1992, about a week before the election, the Employer held a meeting for a group of about 100 East Rome employees to address its positions regarding the campaign. The vast majority of the employees attending were Hispanic. Also present were Gaulin, Thomas Owens, the plant manager of the East Rome plant, Walter Raybun, the Employer’s director of human resources, and a Spanish-language translator. A videotape was shown in which three employees of the Employer’s nearby Cedartown facility described their negative experiences with union representation during the 1980s. After the videotape, a question-and-answer session was held. When employee Mark Holcomb raised questions about the Peck audiotape, a commotion ensued. Holcomb first asked about a tape in which, as he described it, Owens stated that Hispanics lived like animals and should be treated like animals. At this, several employees in the meeting room left their seats and, visibly upset, moved toward the stage where Owens was sitting. Holcomb repeated the question several times, Owens vociferously denied what Holcomb was saying, and more employees moved toward the stage, knocking chairs over. Then Holcomb stated that it was Gaulin who had said these things about Hispanics on the tape, and the employees turned toward Gaulin, who was standing to one side of the room. Gaulin also denied what Holcomb was saying, and Holcomb repeated the accusation. Raybun, concerned about possible violence, ordered Holcomb to leave the room. [3] Owens then ordered everyone except the employees to leave the room, including Gaulin, and the disturbance ended. [4]

In late January, apparently after the January 29 meeting, the Union made two leaflets available to employees. One was a photocopy of the first page of a 1981 newspaper article concerning the Ku Klux Klan’s participation in a strike against the Employer at the Cedartown plant in 1981. The title of the article stated “Money Fueled Klan Scheme During Strike.” About one-half of the portion of the article reproduced consisted of a photograph of Klansmen on the picket line. The Union distributed this leaflet at union meetings. Copies eventually made their way to both of the Employer’s facilities: they were found in the parking lots, breakrooms, and plant areas. At one union meeting where the leaflet was made available, Union Organizer Rodriguez told employees that the Employer gave money to the KKK in Cedartown. [5]

The other leaflet was a photocopy of another newspaper article from 1981 about an Hispanic employee at the Cedartown facility who was mysteriously killed. About one-half of this reproduced, partial article consisted of a photograph of the employee’s father grieving at his son’s gravesite. This leaflet was made available to the employees at the Union’s office in Rome and was distributed at at least one union meeting attended by 60 employees. At that meeting, Rodriguez told the group that the Cedartown employee referred to in the article had been killed by the KKK. [6]

The record makes clear that in Cedartown in 1981 the KKK picketed the Employer’s plant demanding that all the Hispanic employees be discharged. The Klansmen marched through the town and around the plant and burned a cross. They carried signs which insisted that the Employer fire the illegal aliens and send the Mexicans back to Mexico. The Employer did not provide any financial support to the Klan; rather, it obtained an injunction restraining the Klan’s activities. After the injunction against the KKK, a union--not the IUE--filed a petition to represent the Cedartown employees and engaged in picketing at the Cedartown facility. With regard to the dead Cedartown employee referred to in the Union’s second flyer, there were allegations at the time of his death that the KKK had murdered him. Some of the Hispanic employees who had worked at the Cedartown plant in 1981 were working at the Employer’s West Rome facility during the Union’s campaign, and other Hispanic employees at the Rome plants had relatives who had worked at Cedartown in 1981. The record further establishes that the Hispanic employees at the Rome plants generally were apprehensive and fearful of the KKK in light of the Cedartown history. There is no evidence that the Employer raised the KKK’s picketing and related activities in Cedartown in 1981 during the Union’s campaign at the two Rome facilities.

Analysis

The seminal case for analysis of the Employer’s Objection 1 is Sewell Mfg. Co., [1962 CCH NLRB ¶11,504] 138 NLRB 66 (1962). In Beatrice Grocery Products, [1987-88 CCH NLRB ¶19,244] 287 NLRB 302 (1987), the Board reaffirmed the Sewell standard:

[In Sewell] the Board held that it would set aside elections when a party embarks on a campaign which seeks to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals. 138 NLRB at 72. Sewell itself involved a party’s sustained course of conduct, deliberate and calculated in intensity, to appeal to racial prejudice. The Board in Sewell distinguished such conduct from isolated, casual, prejudicial remarks.

Beatrice, supra at 302. Although we found no basis to set aside the election on Sewell grounds in Beatrice, we indicated generally the kind of conduct which would be unacceptable. Thus, when a party makes “racial, ethnic, or religious references as part of an inflammatory campaign theme,” or the party brings up “references to racial, ethnic, or religious groups in a totally gratuitous way, unconnected to any employee concerns, we would not hesitate to set aside the election.” Beatrice, supra at 303. More recently, in KI(USA) Corp., [1992-93 CCH NLRB ¶17,659] 309 NLRB 1063 (1992), we established an analytical approach for Sewell issues: we will assess the “intent” of the party accused of the relevant misconduct as well as its “likely effect on the unit employees in question,” for the purpose of ascertaining “whether this conduct so clouded the election atmosphere as to require the election to be set aside.” KI(USA), supra at 1064, 1065.

The Union’s campaign began in late fall 1991, and through the end of the year it is apparent that neither the Employer nor the Union raised racial or ethnic issues of any significance. However, during January 1992, in the final weeks before the February 7 election, certain matters implicating the ethnic concerns of the Employer’s Hispanic employees--a significant majority of the voting unit--were pressed into service by the Union. With regard to the Peck audiotape, we will assume, without it being necessary to find, that the Union’s repeated use of the tape at union meetings for campaign purposes was a legitimate exercise under Sewell. However, even with the legitimacy of this conduct assumed, the tape’s inflammatory content, especially when it was recounted as referring to the Employer’s Hispanic employees, is undeniable. The use of the Peck tape created a volatile atmosphere in the campaign. The disturbance at the Employer’s January 29 meeting is significant evidence of this volatility.

Within this charged environment, in late January the Union distributed and otherwise made available the two leaflets described above. Both were purposefully related to the KKK--an entity which in this case not only presented its usual well-known reputation for bigotry, but was also of particular significance to the Hispanic employees in light of the events 10 years earlier at the Cedartown plant. The Union clearly connected the leaflet concerning the dead Cedartown employee with the KKK by reviving an old allegation. It is also apparent that Union Organizer Rodriquez attempted to connect the Employer directly with the KKK at a union meeting through an unsupported statement concerning financial assistance. However, the leaflets are more significant in themselves--each with a relatively large photograph designed for emotional impact, and each accompanied by only a partial newspaper article, indicating that the article itself was unimportant. In addition, both flyers drew the Employer into the Union’s message at least implicitly by reference to past occurrences at its Cedartown plant.

The Union defends its use of the “Cedartown employee” leaflet by claiming simply, and without more, that it had “historical value.” The Union explains that the “KKK picketing” leaflet was used because it had heard that the Employer was misleading the employees that the IUE, rather than another union, was involved in the 1981 Cedartown picketing. According to the Union, the flyer demonstrated that a union other than the IUE participated in that dispute. Although it is true that the IUE was not involved in the 1981 situation at Cedartown, the information reproduced on the leaflet does not identify any particular union and therefore has no logical connection to the Union’s averred explanation. We find the Union’s asserted justifications for the flyer to be lacking any foundation, and therefore suggest some other intent. Taking account of all the circumstances, we infer that the Union’s intent was to exploit the ethnic fears of the Hispanic employees by making a visceral connection between the KKK and working conditions. In our view, the Union’s circulation of the two leaflets constituted a sustained appeal to the ethnic sensibilities of the Employer’s Hispanic employees which was inflammatory, gratuitous, and irrelevant to any bona fide campaign issue.

With regard to the effect of the Union’s conduct, it may be that in other circumstances the Union’s use of the leaflets would have been merely “stupid and lacking in taste,” as the Board attorney characterized it. However, in the volatile atmosphere already existing in this campaign because of the Union’s use of the Peck tape as an issue, the Union’s conduct with regard to the two leaflets, including contemporaneous comments by Rodriquez, pushed the organizing campaign past the limits which Sewell permits. We conclude that this misconduct “so clouded the election atmosphere” that laboratory conditions were destroyed and a fair election could not be held. Accordingly, we will direct a new election.