Norwestern Products, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1976

226 N.L.R.B. 653 (N.L.R.B. 1976)

NORWESTERN PRODUCTS, INC.
Norwestern Products, Inc. and Amalgamated Food
Processors Union , Local 190, Amalgamated Meat
Cutters and Butcher Workmen of North America,
affiliated with AFL-CIO, Petitioner. Case 4-RC-
11961
October 29, 1976
DECISION AND CERTIFICATION OF
REPRESENTATIVE -
By CHAIRMAN MURPHY AND MEMBERS FANNING,
JENKINS, AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and ap-
proved by the Regional Director for Region 4 of the
National Labor Relations Board on January 15,
1976, an election by secret ballot was conducted in
the above-entitled proceeding on February 10, 1976,
under the direction and supervision of the said Re-
gional Director. At the conclusion of the election a
tally of ballots was furnished the parties which
showed that of approximately 128 eligible voters 61
votes were cast for the Petitioner, 48 votes for the
Intervenor,' 3 ballots were void, and 8 ballots were
challenged. The challenged ballots are insufficient in
number to affect the results of the election.
On February 19, 1976, the Intervenor filed timely
objections to the election alleging that, despite notice
given to the Board agent that a substantial number of
employees were unable to read and understand Eng-
lish, the Board provided notices and ballots in Eng-
lish only, and that the election, therefore, violated
Board policy requiring bilingual notices.
The Regional Director concluded that the use of
notices and ballots printed only in English was con-
trary to Board policy in the circumstances here and
recommended that the election be set aside. We dis-
agree.
The relevant facts are not in dispute. On January
14, 1976, a hearing was held which resulted in the
execution of the ' Stipulation for Certification Upon
Consent Election. During this hearing, the Interve-
nor raised the question of the ability of certain em-
ployees to understand the English language. The Em-
ployer also indicated that this problem existed. The
Hearing' Officer asked if :the Intervenor was request-
ing a bilingual election, and the Intervenor replied in
the negative.
The parties then entered into the following stipula-
tion:
i Allied Union of Poultry Workers and Food Handlers of America was
permitted to intervene in this proceeding as the incumbent bargaining repre-
sentative.
653
. .. all parties have agreed that the ballot will
be written in English, the election will be con-
ducted strictly in English, that if all three parties
have observers that are fluent in a single lan-
guage and if an employee comes and has a ques-
tion and speaks in that language, all three ob-
servers will be present when the ballot is
explained to that person in that language.
The parties also agreed:
. .. that no challenge to the election may be
made because the ballot and notices are posted
in English ." . . or, that the election was conduct-
ed in English.
At the election, the Employer and the Intervenor
provided translators, but the Petitioner did not. The
Board agent refused to allow the two translators to
participate in the conduct of the election. He inter-
preted the first of the above-mentioned stipulations
as requiring that translators be used only if all of the
parties provided translators
An investigation by the Regional Director dis-
closed that the Intervenor had represented the unit
employees for approximately 18 years. The Employer
and Intervenor have had five or six successive collec-
tive-bargaining agreements, all of which have been
printed only in English. The contracts and all notices
to the employees posted by the Employer and the
Intervenor have been printed only in English.
The Board agent interviewed 18 of the 29,employ-
ees who, the Intervenor contended, were unable to
speak English and found that 10 of these employees
had such limited command of the English language
that he was unable to communicate with them.'
Because of the language problem revealed at the
interviews and evidenced by three void ballots, the
Regional Director recommended that the election be
set aside,, relying on the court's opinion in Marriott
In-Flite Services, Division of Marriott Corporation v.
N.L.R.B.,4 and Fibre Leather Manufacturing Corpora-
tion 5
The Petitioner contends that the Intervenor's ob-
jections must be overruled on the ground that the
parties had agreed to conduct the election solely in
English and stipulated that they would not challenge
the election because of this, fact. The Petitioner
points out that the Intervenor was specifically asked
whether it wanted a multilingual election and replied
in the negative. Relying on the complexity of con-
2 The Regional Director , in his report found the Board agent's interpreta-
tion to be reasonable . We agree.
s The native languages of the employees at the plant were Hindu, Czecho-
slovakian, Lithuanian , Ukrainian , Yugoslavian, Polish , Greek , Vietnamese,
and Spanish
4 417 F 2d 563 (C.A 5, 1969), reversing 171 NLRB 742 (1968)
s 167 NLRB 393 (1967).
226 NLRB No. 127
654 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
ducting an election in 10 languages, the Petitioner
also argues that such a procedure would be impracti-
cal. Petitioner further contends that even if some em-
ployees could not communicate with the Board agent
during his investigation of the objections, this does
not establish that they were unable to understand the
ballot.
The Intervenor, on the other hand, argues that the
parties consented to the use of English ballots solely
because they had also agreed to use interpreters dur-
ing the election- The Intervenor maintains that this
agreement illustrates that the parties recognized the
language problem and that the Petitioner's failure to
provide an interpreter frustrated this scheme. ,
We find merit in the Petitioner's contentions and
therefore reject the Regional Director's recommen-
dation, although we do not place total reliance on the
stipulations of the parties. Any such stipulation, even
one for bilingual ballots, is a factor, but, nevertheless,
is not controlling. The Board's decision must be
based on a showing that there was interference with
the election, resulting from the use of notices and
ballots printed only in English.
The cases upon which the Regional Director relied
are distinguished on their facts from the instant case.
In both cases the petitioners had made timely re-
quests for bilingual notices and ballots before the
election. In Fibre Leather, the Board agent failed to
provide either bilingual ballots or bilingual- notices,
despite the fact ' that the petitioner had called the
Board agent's attention to the language handicap af-
fecting 15-20 of the 86 employees in the unit. Addi-
tionally, the union there did not have a history of
bargaining and conducting its business solely in Eng-
lish. The Board concluded that, in the circumstances,
this failure was not cured by the use of interpreters at
the election. In Marriott, the Board upheld an elec-
tion using English ballots only, despite the Board
agent's knowledge that a 'substantial number 'of em-
ployees did not speak English, because the notices
were posted in both Spanish and English and ena-
bled the employees to understand the ballot. The
Fifth Circuit disagreed with the Board, holding that
the failure to provide bilingual notices and ballots
when timely requested is contrary to the Board's gen-
eral policy and its Rules' and Regulations.6 Unlike
either of the foregoing cases, in the instant case a
timely request for a bilingual election was not made.
In fact, the Intervenor, when asked if it wanted a
bilingual election, responded in the negative and the
parties specifically stipulated to conduct the election
in English only.
6 With due respect for the Court of Appeals for the Fifth Circuit, we,
nevertheless,- adhere to our opinion in that case until such time as the Su-
preme Court may determine the issue
Although, as indicated above, a stipulation such as
is involved here may not be the decisive 'factor in
determining whether there has been interference with
an election, it is entitled to consideration, and some
weight? The Board will uphold stipulations by the
parties as to the use of bilingual notices and ballots
unless it is shown that failure to provide multilingual
ballots had an adverse impact on the employees'
ability to cast an informed vote.
Here, we note that all 'of the Intervenor's previous
collective-bargaining agreements with the Employer
have been printed only in English. All contracts with,
and notices to, the employees by both the Employer
and the Intervenor have been in English only. The
Intervenor's dues-checkoff authorizations have been
printed in English only. These facts tend to show that
the use of notices and ballots in English only could
not have -had an adverse impact on the election, and
hence the record does not establish any basis for set-
ting the election aside. Therefore, we find, contrary
to the Regional Director, that the Intervenor's objec-
tions are without merit.
Accordingly, we shall overrule the Intervenor's ob-
jections and, as the tally..of ballots shows that the
Petitioner has received a-majority of the valid votes
cast, we shall certify it as the exclusive bargaining
representative of the employees in the appropriate
unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Amalgamated Food Pro-
cessors Union, Local 190, Amalgamated Meat Cut-
ters and Butcher Workmen of North America, affili-
ated with AFL-CIO, and that, pursuant to Section
9(a) of the National Labor Relations Act, as amend-
ed, the said labor organization is the exclusive repre-
sentative of all the employees in the following unit,
found appropriate for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment:
All production and maintenance employees at
the Employer's Philadelphia, Pennsylvania,
plant; excluding all salesmen, office clerical em-
ployees, timekeepers, truckdrivers, guards, and
supervisors 'within the meaning of the Act. -
7 See Cruis Along Boats, Inc, 128 NLRB 1019 (1960), which held that to
repudiate a stipulation formally made at a preelection hearing would en-
courage parties to make unwarranted claims and would result in a lack of
finality in Board election proceedings , Banner Bedding, Inc, 214 NLRB
1013 (1974), Graham Ford, Inc, 224 NLRB 927 (1976 ), in which the Board
reaffirmed its position that the parties must be held to their preelection
stipulations as any other party is held to an agreement See also Laymon
Candy Company, 199 NLRB 547 (1972)
NORWESTERN PRODUCTS, INC. 655
MEMBER PENELLO, dissenting:
I disagree with the refusal of my colleagues to ac-
cept the Regional Director's recommendation that in
the circumstances of this case the election be set
aside because the notices and ballots were printed
only in English.
There is well-established precedent with respect to
the use of bilingual or multilingual ballots and/or
notices in an election where many of the employees
do not speak or understand the English language.'
So, the issue presented here is not novel; what is new,
however, is my colleagues' interpolation of the prece-
dent. As I read Fibre Leather, Trio Metal, and the
Board decision in Marriott In-Flite, they clearly
stand for the proposition that where it appears in a
given proceeding that a substantial number of the
employees of the particular company may not speak
or read English, and the Board is so informed, the
subsequent election is invalid and should be set aside
if neither the notice of election nor the ballots are in
a language which the employees can understand.
In Fibre Leather, which is strikingly similar factu-
ally to the instant case, the Board invalidated the
election where there were 15 or 20 Portuguese em-
ployees who could not read English in an 86-employ-
ee unit; here, at least 10 of 29 employees had such
limited command of the English language that they
were unable to communicate to the Board agent
whether they understood the Board's notice or ballot.
In each of these cases, both the notices and ballots
were issued in English only. There the petitioner, and
here the Intervenor, directed attention of the re-
spective Board agent to the language handicap; i.e.,
the inability of certain employees to understand the
English language.' There, an arrangement was made
at the election whereby each party provided an addi-
tional bilingual observer. Here, the parties' stipula-
tion provided for interpreters upon fulfillment of cer-
tain specific contingencies. In both cases the
particular arrangement failed or was ineffective in
assuring an opportunity for an informed expression
by all employees of their true desires. In Fibre Leath-
er, in these circumstances, the Board set the election
aside and directed a new election in which the notice
and ballots were bilingual.
In Trio Metal Cap and the Board decision in Mar-
riott In-Flite, the Board distinguished these cases
from Fibre Leather on the grounds that while the bal-
lots were in English only, nevertheless the notices of
8
Fibre Leather Manufacturing Corporation, 167 NLRB 393 (1967), Thom-
as A Nelson d/b/a Trio Metal Cap Division, Kerr Glass Mfg Corp, 168
NLRB 802 (1967), Marriott In-Flite Services, Division of Marriott Corpora-
tion, 171 NLRB 742 (1968)
9 Unlike my colleagues, my reading of Fibre Leather discloses no basis for
their assertion that the petitioner had made a timely request for a bilingual
notice and ballots before the election
election were in Spanish and/or Polish, thereby en-
abling the Spanish- and Polish-speaking employees
to understand the ballot.
In my opinion, providing an opportunity for the
employees to make an effective and informed expres-
sion of their true desires in an election is a funda-
mental .obligation of the Board and not a responsibil-
ity resting on the parties.10 It is -axiomatic that a
representative, unlike an unfair labor practice, pro-
ceeding is nonadversary and the Board's principal
function is investigative and to assure the rights of
employees guaranteed by Section 7 of the Act. I do
not believe that the Board can or should accede to
agreements of parties to the use of English notices
and ballots in these circumstances which are so clear-
ly in derogation of those employee rights. We have
said, and I fully agree, that "[w]hen we are asked to
invalidate elections held under our auspices, our only
consideration derives from the Act which calls for
freedom of choice by employees as to a collective
bargaining representative." 11
As precisely stated by the Regional Director, it is a
cardinal responsibility of the Board to protect the
integrity of its election processes and nothing could
be more basic than providing the employees with a
ballot and/or notice of election printed in a language
they are capable of understanding. Therefore, once
the Board agent is apprised either by his investiga-
tion 12 or by notice of one of the parties of a language
problem, such as is involved in these cases, before an
election is held, it is his duty to refrain from conduct-
ing the election until it is clear that the foreign lan-
guage-speaking employees have been given an op-
portunity to make an informed choice. It is for this
reason that I do not agree with the Regional Director
and my colleagues that the Board agent exercised
reasonable judgment in refusing to allow the two
translators to participate in the conduct of the elec-
tion. Regardless of the stipulation of the parties, if
the two translators instead of three would have
10 It is therefore irrelevant or of little consequence , in my view, that the
Intervenor had a history of bargaining and conducting its business solely in
English or that it responded in the negative to an inquiry about a multilin-
gual election It is the needs of the employees in making a free and untram-
meled choice of a bargaining representative that is controlling and signifi-
cant , not the needs of a union , such as the incumbent Intervenor, to
maintain an effective bargaining relationship
11 General Shoe Corporation, 77 NLRB 124, 126 (1948)
12 In the subject case, the Board agent interviewed 18 of the 29 employees
who the Intervenor claimed were unable to speak English, and found as
noted above, that 10 of these employees had such limited command of the
English language that they were unable to communicate to the Board agent
whether they understood the Board's notice or the ballot The other eight
employees "seemed" to understand the ballot and how to mark their choice
on it In addition , there were three void ballots cast in the election each of
which was marked in a manner indicating that the voter had not understood
the instructions on the ballot This is the matter of paramount or critical
concern for the Board and its agents , not that prior collective -bargaining
agreements , notices, and dues -checkoff authorizations may have been print-
ed in English
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedied the situation, then the Board agent should
have permitted them to participate. -
As in Fibre Leather, the Board should set the elec-
tion aside and direct a new one with appropriate
English and foreign language notices and ballots. In
sum, my position is eminently expressed by the fol-
lowing observations of the Board made in another
context, but equally applicable here. "In election
proceedings, it is the Board's function to provide a
laboratory in which an experiment may be conduct-
ed, under conditions as nearly ideal as possible, to
determine the uninhibited desires of the employees.
It is our duty to establish those conditions; it is also
our duty to determine whether they have been ful-
filled . When, in the rare extreme case, the standard
drops too low, because of our fault or that of others,
the requisite laboratory conditions are not present
and the experiement must be conducted over again.
That is the situation here," 13
13 General Shoe Corporation, supra at 127, fn I I