YKK (U.S.A.), Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1984

269 N.L.R.B. 82 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
YKK (U.S.A.) Inc. and Sandra M. Collins, Petition-
er and Local 571, United Cement, Lime &
Gypsum Workers International Union, Union.
Case 10-RD-799
8 March 1984
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
The National Labor Relations Board, by a three-
member panel, has considered objections to an
election' held 22 and 23 July 1982 and the hearing
officer's report and recommendations on objec-
tions, which is attached hereto as an appendix. The
Board has reviewed the record in light of the ex-
ceptions and briefs, and adopts the hearing officer's
findings and recommendations only to the extent
consistent herewith. 2
Concerning Objections 1, 3, and 7, the hearing
officer found that coercion, restraint, and intimida-
tion by third parties and union agents were insuffi-
cient to result in such a general atmosphere of fear
and reprisal that a free and fair election could not
be conducted. He found the various incidents iso-
lated, and thus insufficient, in his view, to affect
the results of the election. We disagree. We find
that the conduct in the instant case was so aggra-
vated that a free expression of choice was denied
to the YKK employees.
Several acts of violence and threats of violence
occurred during the critical period which in and of
themselves would serve as a basis for overturning
the election. But to appreciate the full flavor of the
atmosphere preceding the election, we have looked
at the pre-critical period conduct to the extent that
it serves as background, giving meaning and di-
mension to critical period conduct. Briefly summa-
rizing events taking place during that period, we
note that an employee's tires were slashed. This
same employee had recently been identified in the
Union's newsletter as having withdrawn his mem-
bership, and graffiti was written about him on the
bathroom walls. In a separate incident, one of the
I The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was 245 for, and 235 against,
Local 571, United Cement, Lime & Gypsum Workers International
Union; there was I challenged ballot, an insufficient number to affect the
results.
2 The Employer has requested oral argument. This request is denied as
the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
The Employer also moves to reopen the record to consider evidence
relating to an unfair labor practice charge filed concerning prepetition ac-
tivity on the part of the Union. In light of our disposition of the instant
case, we find it unnecessary to consider additional evidence which would
be adduced at a reopened hearing. Accordingly, the Employer's motion
is denied.
wheels fell off this employee's car as he was leav-
ing work. On investigation he discovered that
someone had removed the lugs and he found them
only a few feet from where his car had been
parked. Another employee received numerous
anonymous telephone calls to the effect that the
caller "knew she was the head of the petition and
that she was going to get her ass stomped." Still
another employee was harassed on the highway by
union steward Meister, whose road racer antics
nearly caused her to have a serious accident. Mei-
ster, accompanied by the Union's vice president,
slowed down so the employee would pass them,
then sped up and pulled in front of her, quickly
slamming on the brakes, causing her to do the same
and swerve so as to avoid an accident.
These tactics were not isolated but continued
into the critical period. Union steward Meister used
the same harassing highway tactics on employee
Gussie Johnson as she was driving home with her
daughter and five grandchildren. Only this time he
followed them for 16 miles and repeatedly passed
them, pulled in front of them, and then slammed on
his brakes in an attempt to run them off the road.
Another employee noticed she was being followed
home from work one night, and the next morning
she discovered her fuel line had been cut. Still an-
other employee found a scratch down the entire
side of her car which had been parked at the plant.
Additionally, employee Jackie Hester was ap-
proached at her worksite by co-worker Cox who
asked her how she intended to vote. Wearing a
"vote no" button, she turned towards him and re-
plied that how she intended to vote was none of
his business. Cox then threatened, "If you vote no,
you're going to get hurt."3
Employee Melanie Johnson, a woman weighing
only 115 pounds, was intimidated by union repre-
sentative Colston, a man approximately 6 feet 5
inches tall and weighing 250 pounds. On the day of
the election, Johnson was holding a sign outside
the main gate which read "Vote No." Colston
walked to where she was standing, stepped in front
of her, and blocked her and her sign from view.
Each time Johnson moved, Colston followed and
blocked her way.
On other occasions during the critical period,
several employees received intimidating telephone
calls from both union agents and anonymous call-
ers. Phyllis Chapman received several such calls.
The callers told her she better vote yes, then she
hung up on them. An anonymous caller telephoned
3 The Board does not consider lightly such threats of bodily harm
even when made to one employee. See Steak House Meat Co., 206 NLRB
28 (1973).
269 NLRB No. 8
82
YKK (U.S.A.) INC.
Elizabeth Bryant and told her that she "better keep
her damn mouth shut about Local 571." Lundy
Johnson's children received several anonymous
calls during the day asking information about their
mother's whereabouts, when she would be home,
and whether there were other adults in the house.
A week later, Johnson received a call from the
union steward, who talked to her about the elec-
tion, then inquired about her children. In addition
to these telephone threats, several employees, in-
cluding a union steward, wore T-shirts throughout
the plant with the not-so-subtle words "Vote No
and Catch Hell" on back and "Vote Yes and Over-
come" on the front. Finally, during the 2 weeks
preceding the election, several employees support-
ing the decertification petition distributed handbills
at different times and at different gates. On several
of these occasions, union adherent Joe "Fireball'
Donaldson drove into the plant gate at a high rate
of speed and swerved his sports car into the far
lane toward the handbillers, barely missing them.
On one such occasion, union district representative
Swain's only comment was that "they all better
watch out" because "they might get hit."
The aforenoted acts establish a pattern and prac-
tice of coercive conduct on the part of the Union
and its allies. 4 In fact, a month before the instant
petition was filed, shop steward Annie Curry, in a
discussion with employee Johnson concerning vio-
lence and rumors of threats surrounding the cam-
paign, stated that "sometimes it takes this kind of
thing to get the point across." Such an admission
shows that the Union intended to capitalize on
threats and acts of others and even exacerbated the
already fear-infected environment with acts of har-
assment of its own.
During a representation election the Board must
provide "a laboratory in which an experiment may
be conducted, under conditions as nearly ideal as
possible, to determine the uninhibited desires of the
employees." General Shoe Corp., 77 NLRB 124, 127
(1948). The Board must set aside an election if an
atmosphere of fear and coercion rendered free
choice impossible.
Thus, regardless of whether acts of misconduct
were attributable to union agents, the maintenance
of laboratory conditions requires that employees be
protected from conditions producing an atmos-
phere of fear and coercion.5 It is not essential that
4 As the Board has stated, "the objectionable acts are to be viewed
'cummulatively' and not 'standing alone."' Audiovox West Corp., 234
NLRB 428, 431 (1978), quoting from Foremost Dairies of the South v.
NLRB, 379 F.2d 241. 244 (5th Cir. 1967). See also Sonoco Products Co. v.
NLRB, 399 F.2d 835, 843 (9th Cir. 1968).
5 See, e.g., The Seville, 262 NLRB 1282 (1982), where both the majori-
ty and dissenting opinions agreed that third-party misconduct may war-
rant the setting aside of an election. In regard to Seville, Member Hunter
the precise source of the incidents creating the
tainted atmosphere be shown. Rather, as the Board
held in Al Long, Inc. :6
It is not material that fear and disorder may
have been created by individual employees or
nonemployees and that their conduct cannot
probatively be attributed either to the Employ-
er or to the Union. The significant fact is that
such conditions existed and that a free election
was thereby rendered impossible.
Similarly, as the Fourth Circuit concluded in Meth-
odist Home v. NLRB: 7
If the conduct, though that of a mere Union
adherent and not that of a Union agent or em-
ployee, is sufficiently substantial in nature to
create a general environment of fear and re-
prisal such as to render a free choice of repre-
sentation impossible, then it will require the
voiding of the election.
Finally, the Eighth Circuit recently observed:8
The focus of our inquiry is not solely on who
made the threats. The question is whether
threats, by whomever made, created a coer-
cive environment. A threat made by a compa-
ny or a union agent is a weightier piece of evi-
dence, but threats by adherents of either side
may still be probative in a given case.
Clearly, where misconduct-irrespective of its
source-creates a general atmosphere of fear and
coercion that renders impossible a free choice by
employees, the Board has long set aside elections.9
Further, the threats and misconduct cannot be
characterized as unobjectionable simply because
they were not directed at all employees. In the in-
stant case, several employees testified that they had
heard of rumors of threats and acts of violence di-
rected toward employees opposing the Union.
Thus, the evidence establishes that word of the
threats and misconduct was widely disseminated.
Here, the serious threats and other acts of mis-
conduct, especially in the context of property
damage and acts of violence which preceded the
critical period, created such fear and anxiety that a
fair election could not be conducted. This conclu-
adheres to the views set forth in his and then Chairman Van de Water's
dissent.
' 173 NLRB 447, 448 (1968).
7 596 F.2d 1173 at 1183 (1979).
s NLRB v. Monark Boat Co., 713 F.2d 355, 360 (8th Cir. 1983).
9 See Diamond State Poultry Co., 107 NLRB 3 (1953) (election set aside
because employees of already unionized plant told Diamond employees
to vote for the union "or something would happen"); Sonoco of Puerto
Rico, 210 NLRB 493 (1974) (election set aside when union adherents-on
four occasions-threatened physical violence if other employees did not
vote for the union).
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion is particularly true where-as here-union
agents were directly responsible for certain acts of
misconduct. We note that acts of harassment con-
tinued up to, and including, the very day of the
election. Finally, it is noteworthy that the election
was quite close-a change of 5 votes, out of 480
voters, could have led to a different result.
Additionally, in regard to Objection 5, we find
that the Union, through its literature and the rheto-
ric of its agents, made appeals to racial and nation-
al origin prejudice on matters unrelated to election
issues, thereby inflaming the racial feelings of the
employees and destroying the prerequisite laborato-
ry conditions.
The hearing officer found that in June, approxi-
mately 100 employees attended a union meeting
where short speeches were given by each of the
four International union representatives. According
to employee Campbell's uncontradicted testimony,
which was characterized by the hearing officer as
"open and honest," Joe Swain remarked during his
speech, "Don't let the Japs at YKK and the people
at YKK pull the wool over your eyes." In July a
second union meeting was held with approximately
75-100 YKK employees in attendance. At this
second meeting, International union representative
Colston spoke about the need for the employees to
stick together against the "Japs." He then ended
his speech with words to the effect that "we beat
the Japs after Pearl Harbor and we can beat them
again." This same union officer was with 20-30
prounion YKK employees handbilling outside the
plant gate one morning when a Japanese engineer
drove by and an employee shouted, "[t]here goes
one of those damn Japs." Colston then yelled, "Go
back where you came from, you damn Jap."
Aside from these racial comments, the Union
also disseminated racially oriented and inflamma-
tory remarks in several of its handbills which made
reference to "Japs" and a "sneak attack." In addi-
tion, anti-Japanese graffiti appeared on the bath-
room walls. Finally, two employees, a union vice
president and a steward, wore shirts and work rags
printed with the phrases "Remember Pearl
Harbor," "Japs Go Home," "Japs speak with
forked tongue" and "slant eyes."
The hearing officer, assuming that all of the ra-
cially oriented acts were attributable to the Union,
still found that they "were not so extensive or per-
vasive so as to prevent or impede" employee free
choice.
The Board, in Sewell Mfg. Co., 138 NLRB 66
(1962), held that, where a party embarks on a cam-
paign which seeks to overstress and exacerbate
racial feelings by irrelevant, inflammatory appeals
to racial prejudice, the Board would set aside the
election. We conclude here that the Union made ir-
relevant and inflammatory appeals to racial preju-
dice, unrelated to the election issues, thereby de-
stroying the prerequisite laboratory conditions.
We note that certain courts of appeals have like-
wise stated that racial appeals have no place in
elections. See, e.g., NLRB v. Silverman's Men's
Wear, 656 F.2d 53 (3d Cir. 1981). In Silverman's the
employer alleged that the union infected the elec-
tion atmosphere with religious prejudice and intol-
erance when the union's secretary-treasurer re-
ferred to the employer's vice president as a "Stingy
Jew" at a meeting of 20 employees held 6 days
before the election. The Third Circuit found that
the employer's allegations, if true, would warrant a
new election, assuming the remarks had a signifi-
cant impact on employees' free choice.
In applying the Sewell rule, the Silverman 's court
stated (656 F.2d at 58):
[T]he remark, rather than identifying any posi-
tion of the Employer, can typically serve only
to spotlight the minority religion of the Com-
pany's principal. Such a remark has no pur-
pose except blatantly to exploit religious preju-
dices of the voters.
Silverman's is analogous to the instant case. There
is no conceivable way that a reference to beating
"Japs" at Pearl Harbor could be relevant to a le-
gitimate campaign issue. The slur in Silverman's
was made in front of a group of employees. Here,
the International union representative made the
racial slurs in front of 75-100 assembled employees.
In addition to these remarks, numerous other racial
epithets were written and uttered during the cam-
paign. In our view, the hearing officer's conclusion
that these remarks and the graffiti were unlikely to
have interfered with the election is not supported
by the evidence and is contrary to Sewell. '
Accordingly, we shall sustain Objections 1, 3, 5,
and 7 and direct that a second election be held.
[Direction of Second Election omitted from pub-
lication.]
MEMBER ZIMMERMAN, concurring.
I join my colleagues in sustaining Objections I
and 7. I agree with them that the various acts of
'0 Other circuit courts have likewise emphasized that appeals to racial
and ethnic hatred have no place in an election campaign. In NLRB v.
Katz, 701 F.2d 703, 705-708 (7th Cir. 1983) a Catholic priest made re-
marks at a union meeting about the employer being Jewish and rich
while the employees were poor. Other ethnic/religious references were
made during the campaign. The court found the religious slurs were not
relevant to the campaign and denied enforcement of the Board's Order.
In Schneider Mills v. NLRB, 390 F.2d 375, 379-380 (4th Cir. 1968), a
union handbill depicted the company's president as inhuman and com-
pared him to the "mad man" Hitler. The court found that the statements
were highly inflamatory and not germane.
84
YKK (U.S.A.) INC.
harassment and intimidation had a cumulative
effect which created a general atmosphere of fear
and coercion that rendered a free choice impossi-
ble. Audiovox West Corp., 234 NLRB 428, 431
(1978). I do not, however, rely on the conduct al-
leged in Objection 3. I agree with the hearing offi-
cer that T-shirts which say "Vote Yes and Over-
come" on the front and "Vote No and Catch Hell"
on the back are not objectionable. I
I Since I agree that the election should be set aside on the basis of
Objections I and 7, 1 find it unnecessary to reach Objection 5 (the objec-
tion related to appeals to racial and national origin prejudice).
APPENDIX
III. OBJECTION 1:
At various times prior to the election, employees
were coerced, restrained and intimidated by the
Union and its representatives in violation of their
rights under the National Labor Relations Act, as
amended, and such actions destroyed the prerequi-
site laboratory conditions necessary for a valid elec-
tion:
OBJECTION 7
By these and other acts, the Union and its agents
engaged in illegal and improper conduct which
interfered with the employees' right to freely
choose a bargaining representative and destroyed
the prerequisite laboratory conditions necessary for
a valid election.
The Employer presented a number of employee wit-
nesses9 in support of the above objections. Several wit-
nesses testified to a number of incidents outside the criti-
cal period. Otis Crabbe testified that he resigned from
the Union in April, 1982. In the Union's April newslet-
ter, which Crabbe stated was distributed on April 6,
1982, Crabbe was identified as one of five employees that
had withdrawn from the union. On the same day, this
newsletter was distributed, Crabbe testified that when he
left work to go home he found the statement "you fuck-
ing scab" written in lipstick on his car windshield which
was located in the company parking lot. The author re-
sponsible for this was not identified.
On the evening of April 7, 1982, Crabbe testified that
he went to a Macon nightclub and when he left the club
he found three of his car tires had been slashed. A wit-
ness gave a description of the person seen slashing the
tires. Crabbe stated that the description fit Union sup-
porter Chris Walton.' 0 On the next working day Crabbe
informed Walton in the bathroom at the plant that if he
could prove that Walton slashed his tires he would pros-
ecute him. Walton then replied, "you can't prove shit
what happens to you scabs."
* I have credited the testimony of all witnesses unless otherwise noted.
i0 All Union officers are listed on attached exhibits which are marked
as Employer's Exhibit 10 and II
Crabbe further testified that he mainly received harass-
ment from Union supporters Steve Smith, Chris Walton
and David Green. A few days after the April 7, 1982 in-
cident, Crabbe stated that he went to the bathroom and
Smith, Walton and Green were in there. After he en-
tered, Crabbe stated that Green told Smith and Walton
in his presence, "we're going to have to do something
about these fucking scabs trying to get our Union out."
Also, Crabbe testified that he constantly saw graffiti
written on the bathroom walls about him but he did not
know who was responsible for it.
Crabbe also testified that prior to June, 1982, he re-
ceived telephone calls from Union supporter Faye
Campbell, District Representative Joseph Swain and a
Union supporter by the name of Janice. Crabbe stated
that Janice and Campbell identified themselves when
they called and told him that they wanted to know
whether or not he would support the Union. When
Crabbe explained that he would not support the Union,
they told him that they needed his support and his effort
and then the conversation ended. Between June, 1982
and the election, Crabbe testified that Union District
Representative Joseph Swain called him and he was
polite to him. Again, Crabbe stated that he explained
why he did not support the Union.
Jerry Fitzpatrick testified that in April, Union support-
er David Green called him a "scab" and Union support-
er Mickey Lathan called him a "son-of-a-bitch," a "bas-
tard" and a "scab." He stated that this name calling has
not stopped and he is still being called a "scab."
Betty Nelson' testified that she received a number of
anonymous phone calls in April, 1982 to the effect that
"they knew she was head of the petition and that she
was going to get her ass stomped." Nelson testified that
she recognized one caller as employee Irene Bonner.' 2
After receiving a number of these calls, Nelson stated
that she had her telephone tapped and the calls were
coming from the home of Irene Bonner. The Employer
presented no records that the telephone company actual-
ly made the tap. Furthermore, Bonner denied making
any telephone calls to Nelson's home.
Melanie Johnson testified that around the first part of
May, 1982, Jerry Fitzpatrick, a mechanic on the first
shift, came through her work area and she stopped him
and asked him to explain to her the petition she had been
hearing about. He then told her that it was a petition to
have a vote on whether or not they wanted a Union to
represent them. Later the same evening shop steward
Annie Curry"a wanted to talk to Johnson in the bath-
room. They went to the bathroom and Curry attempted
to encourage Johnson to file a complaint against Fitzpa-
trick stating that he has approached her and attempted to
get her to sign a petition. Johnson then told Curry that
I I have credited the testimony of Betty Nelson although the Union
attempted to discredit her at the hearing. I found her to be cooperative
and responsive on both direct and cross-examination. Therefore, the
motion to discredit her testimony is hereby denied.
" Bonner testified that she resigned as shop steward about five months
prior to the September, 1982 hearing. I have not credited her testimony
regarding this incident.
is Employer's Exhibit 11 reflects that Annie Curry. as of April 26,
1982, was a shop steward on the second shift in the M. F. Plant.
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she would not do it. During the same conversation in the
bathroom Johnson and.Curry got into a discussion on vi-
olence and rumors of threats. During the discussion,
Johnson stated that Curry looked her in the eye and told
her "sometimes it takes this kind of thing." Employee
Lundy Johnson testified that she was in one of the bath-
room stalls and heard Curry tell Melanie Johnson that
"sometimes it takes this kind of thing to get the point
across." Annie Curry did not testify at the hearing and
the Union presented no testimony on this incident.
Brenda Tucker testified that on the morning of May
25, 1982, she was driving to work and, as she was get-
ting off the ramp onto the interstate, third shift steward
John Meister"4 was driving a red Trans-Am and was in
front of her. She stated that Union Vice President
Johnny Carden was also in the car with Meister. As they
saw her coming, Tucker stated that they slowed up so
that she would pass them. When she passed them, they
speeded up and pulled out and came around her. Once in
front of her, they slammed on their brakes real quick
causing her to slam on her brakes and swerve to keep
from hitting them. However, Meister and Carden testi-
fied that they were talking while they were driving to
work that morning and suddenly a tractor-trailer truck
which was in front of them put on its brakes quickly and
when they looked up and saw this happening they
slammed on their brakes. They testified that they ob-
served employee Brenda Tucker was driving behind
them and she had to stop quickly also because she was
driving closely behind them.
On May 28, 1982, Otis Crabbe testified that one of the
wheels on his car fell off as he exited the Employer's
gate. He stated that the lugs were missing and he found
one of them by the other three lugs he found against the
curb about three to four feet from where his car had
been parked. Crabbe further testified that, while he was
picking up the lugs, Union supporters David Green and
Mickey Latham drove by him and laughed at him and
called him a scab. Crabbe testified that he had no specif-
ic information regarding who loosened the lugs on his
car.
Regarding incidents during the critical period, Em-
ployer witness Elizabeth Sue Bryant testified that she re-
ceived a number of anonymous phone calls but the caller
hung up when she answered the phone. Around June 14,
1982, Bryant stated that her fourteen year-old daughter
called her and asked her to come home right away be-
cause an anonymous caller had asked if she was home
and when she informed the caller that she was not home
the caller told her to tell Bryant that she better keep her
mouth shut about Local 571. Bryant further stated that
one or two days later an anonymous caller phoned her
home and told her that she "better keep her damn mouth
shut about Local 571." She stated that the caller also
asked her how long did she think she could stand behind
her supervisor, Diane Cowan, and YKK.
Gene Bryant, the husband of Elizabeth Sue Bryant,
testified that he had accompanied his wife to the plant on
several occasions and remained with her as she hand-
14 Employer's Exhibit II reflects John Meister was the first shift shop
steward in Textiles plant II as of April 26, 1982.
billed. He stated that on one of the days of the election
or on the day after the election he received a call at
work and the caller identified himself as Union President
Wayne Smith and asked him did he know Elizabeth Sue
Bryant and Diane Cowan. When he responded in the af-
firmative, the caller asked him how much longer could
he hold their hands and be their bodyguard. After this
statement, Bryant testified that he told the caller that "he
would do it just as damn long as it took and if any harm
came to either one or them he would blow his damn
brains out and leave him laying there in his own blood
dying." After this phone call, Bryant stated that he
called his wife and told her the phone conversation. Eliz-
abeth Sue Bryant testified that her husband called her
and told her of this incident on the day after the election.
Wayne Smith 1 denied threatening anyone during the
campaign.
Lundy Johnson testified that she received a telephone
call from John Meister on June 27, 1982. Johnson stated
that Meister identified himself and told her that he was
with Local 571 and wanted to discuss the upcoming
election with her. Johnson then told Meister that she was
against the Union. At this point, Meister again stated that
he wanted to talk to her about the election and then, in
the middle of his statement, asked her how many chil-
dren did she have. Johnson explained that she didn't
think the number of children had anything to do with
the election. Johnson also testified that the week prior to
Meister's call, her children received several anonymous
calls during the day asking information about her where-
abouts, when she would return home, and whether there
were other adults in her home.
Phyllis Chapman testified that she received four or
five anonymous phone calls about a week before the
election. She stated that one caller was very nice to her
and just asked her why she didn't like the Union. She
stated that the other callers told her that she better vote
yes and then she hung up on them.
Ronnie Campbell testified that, about two or three
weeks before the election, Union District Representative
Joseph Swain called him and told him that he had been
informed that Campbell might have some questions or he
might be having some problems. At the end of their tele-
phone conversation, Campbell told Swain that he did not
have any questions. At the end of their telephone con-
versation, Swain told Campbell that "he knew he and his
wife had been good Union members and he would hate
to see anything happen." Furthermore, Campbell testi-
fied that as he and Sandra Collins were leaving the pre-
election conference, he saw Swain, International Repre-
sentative Jimmy Colston and others together near a van.
Then he saw Swain point his finger in his direction and
say "That's the guy I'm talking about right there." Later
the same day, Campbell stated that he was waiting for
his wife to pick him up outside the company gate and,
while he was waiting, Swain came up to him and called
him "a lying little shit."
'i I have not credited Smith's testimony with regard to his denial of
this incident.
86
YKK (U.S.A.) INC.
Brenda Tucker, Elizabeth Sue Bryant, Ann Agee, Me-
linda Varnadore, Gussie Johnson, and Gary Critcher tes-
tified concerning Union adherent Joe "Fireball" Donald-
son. These petitioning employees, during the two weeks
preceding the election, distributed handbills on different
days and on different shifts at the main gate to the plant
and at the gate to the Chestney plant. They all testified
that they were standing on the left side of the road in
order to distribute handbills through the driver's window
to employees entering the plant in the right-hand lane.
Also, the pro-union handbillers were standing on the
same side of the road. They stated that Donaldson drove
into the plant driveway fast everyday and swerved his
black Camaro automobile into the left lane toward them,
spinning his wheels and passing close by them. The testi-
mony varied from one inch to two and a half feet as the
distance Donaldson came with his car to where they
were standing. The testimony was unclear with respect
to how far apart the pro-union handbillers were standing
from the non-union or petitioning handbillers when Don-
aldson swerved into the left land. Joyce Ann Agee and
Gussie Johnson testified that the prounion handbillers
were standing next to them while witnesses Elizabeth
Sue Bryant and Brenda Tucker indicated that the proun-
ion handbillers were a good distance away from the non-
union handbillers.
Gary Critcher testified that one day while he was
handbilling Donaldson drove his car wrecklessly into the
company gate and he heard International Representative
Jimmy Colston tell Donaldson to quiet it down. Then
Donaldson started driving wrecklessly again in the Em-
ployer's parking lot. Gussie Johnson testified that one
morning while she and other non-union employees were
handbilling, Donaldson drove fast into the gate and Dis-
trict Representative Joseph Swain who was handbilling
for the Union told them that "they all better watch out"
because "they might get hit."
Gussie Johnson testified that on the evening of June 5,
1982, she and her daughter, Teresa Moore, and her five
grandchildren stopped at Woody's Barbecue on Ocmul-
gee East Boulevard in Macon, Georgia and, while they
were there, she saw John Meister in the parking lot in a
red Trans-Am. When they left Woody's to start on their
16 mile trip home, they observed that Meister began fol-
lowing them in his car. Throughout their trip, Meister
repeatedly passed them and pulled in front of them and
slammed on his brakes. Then he would speed up a short
distance and turn around and pass them coming the op-
posite direction and then repeat the above. Johnson
stated that when she drove into her driveway she saw
Meister pass by for the last time. She stated that she then
called the Twiggs County Sheriff Department and asked
them to be on the look out for Meister's car. However,
she stated she didn't know whether or not the Sheriff
Department ever located Meister that evening. Further-
more, Johnson's testimony was corroborated by the testi-
mony of her daughter, Teresa Moore.
Melanie Johnson testified that on the night of July 20,
1982, she was going home from work and someone fol-
lowed her home. After she was home, the same car came
twice by her home. Johnson stated she could not identify
the car or the driver except that she observed that the
car headlights were the same as her car. The next morn-
ing, however, Johnson testified that she found that her
car fuel line was cut.
Sue Rowland testifed that two and one half to three
weeks before the election, on a Friday, she drove her car
into the parking lot outside the plant building where she
worked. When she pulled into the parking lot, she saw
Union adherent Tommy Bryant observing her. Later the
same day, Rowland stated that Bryant, about two or
three times, passed her machine and smiled at her. When
she went out to her car after work she found a scratch
down the entire passenger side of her car. Rowland
stated that on the following Monday, Bryant came to her
machine and stated "it will cost pretty much to fix it,
won't it." No testimony established how the scratch got
on Rowland's car.
Otis Crabbe testified that on June 30, 1982 he went to
a Macon, Georgia nightclub and Mickey Latham' 6 was
there also along with five or six employees of YKK. He
stated that he went to the bathroom and when he came
out of the bathroom Latham shoved him up against the
bar and told him, "I'm going to kick your fucking ass,
scab." At this point, an employee of the nightclub
stepped between the two of them whereupon Crabbe re-
turned to his table. When the club closed and Crabbe
was leaving, Latham shoved him on the back of the
shoulder as he walked down the steps. When Crabbe
reached the bottom of the steps, Latham shoved him
again and told him, "I'm going to kill you, scab." When
Crabbe got in his car and he was about to close the
door, Latham swung the door open and told him "I'm
going to kill you, scab." At this moment, Crabbe testified
that he grapped his gun and pointed it at Latham and
told him he would shoot him if he didn't back off.
Latham then left and Crabbe drove off.
Jackie Hester testified that one dya, within a two-week
period of the election, David Cox17 came on her line
and asked her how she was going to vote. When Cox
asked her this question she was wearing a "vote no"
button but it was not visible to Cox because she was
leaning over one of her machines at the time. When
Hester raised up, Cox saw her "vote no" button. Hester
then replied that the way she was going to vote was
none of his business. Then Cox told her, "If you vote no,
you're going to get hurt." Hester then told Cox to get
off her line.
Michael Trantow t' testified that he commenced work
with the Company on May 10, 1982 and that he was not
i' Mickey Latham was terminated from the company in April 1982. In
Kent Corporation, 228 NLRB 78 (1977), the Board rejected the Employ-
er's objection that a bomb threat made by a former employee of the Em-
ployer two months prior to the election destroyed the laboratory condi-
tions of the election and that the Union created an atmosphere of fear in
ratifying the conduct by arranging for the former employee's bail
through its attorney. In the instant case, I find that conduct of former
employee Latham did not create a general atmosphere of fear which war-
rants setting aside the election.
17 The record reflects that David Cox was an employee of the Em-
ployer at the time of the election and held no Union office
Is I am not convinced by the testimony of Trantow. In reaching this
conclusion, I have considered his overall demeanor and a general lack of
certain specifics in his testimony. For these reasons, I have not relied, in
any way, on Trantow's testimony
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testifying willingly "because of fear of recrimination
from the Union at YKK." He then testified that about
three weeks before the election, shop steward Michey
Hough' 9 told him that "until he became sympathetic to
the Union cause, they would try to make things as diffi-
cult for him in the department as possible." He stated
that Union employees on other shifts could make his job
on the line difficult by failing to do their jobs and leav-
ing work unfinished for him. Trantow testified that two
or three weeks before the election his workload became
increasingly more difficult. He stated that he felt his
workload increased because he was not wearing any-
thing for or against the Union.
Melanie Johnson testified that on the morning of elec-
tion, July 22, 1982, she was standing at the main gate to
the plant along with other employees who were hand-
billing against the Union. Johnson stated that she was
holding a sign which said "vote no" when International
Representative Jimmy Colston stepped about one to one
and a half feet in front of her and blocked her and the
view of her sign. About five or six times, Johnson testi-
fied that she moved to another spot near the gate en-
trance and Colston followed her and then stepped in
front of her and blocked the view of her sign. Colston20
denied that he followed any employee around and pur-
posefully stood in front of the employee during the time
he handbilled.
During the week of the election, Betty Nelson testified
that she and petitioner Sandra Collins were handbilling
at the gate to the plant one morning when Union Dis-
trict Representative Joseph Swain came up and told
them that he would like to talk to them about why they
did not want the Union. Nelson then told Swain to call
them. Swain then replied that he could not do that be-
cause he would be accused of harassing or intimidating
them, but when all was over, he would like to talk to
them. At this point, Swain told Nelson, "Well, it's my
understanding that you've got a bad attendance record."
Nelson then replied that her record was not half as bad
as some of the people in her department that were in the
Union. Swain then said, "Well, it's an understanding that
you do have a written warning." Nelson testified that the
above statements by Swain made her feel that her job
was at stake and, if such was the case, she was not going
to be represented by the Union.
Jackie Hester 2 ' testified that one day in June, 1982 she
and employee Wendell Sutton were having a conversa-
tion in the shipping department about employees getting
in the Union when employee Tim Johnson walked by
them. As Johnson walked by, Hester commented to
Sutton that Johnson was one employee that would not
ever get in the Union. Then Sutton replied, "If I whip
his ass, he'll get in the Union." Hester later told employ-
ee Steve Bridges what Sutton had stated and encouraged
him to inform Johnson. About a week or so before the
election, Bridges told Johnson what Hester had told him.
"I Mickey Hough was shop steward on the third shift in Textiles II
department as reflected by Employer's Exhibit 11 dated April 26, 1982.
'o I have not credited Colston's testimony with respect to his denial of
this incident.
s1 I have credited the testimony of Hester, I found her believable and
she was open and responsive on both direct and cross-examination.
Johnson2 2 testified that Bridges told him that he heard
that someone was going to damage his car and was
"going to whip his ass."
Later, Johnson stated that he asked his supervisor,
Ken Turnbow, if he had heard anything about the above
threats against him. Turnbow then told Johnson that he
had heard some statements from Jackie Hester about the
matter. Sutton23 denied making any threats to Hester or
anyone regarding Timn Johnson or any other employee.
Also, Johnson stated that Sutton never physically
touched him. After the election, Johnson stated that he
asked Sutton about the matter and Sutton just stuck out
his hand and he shook it and that was the end of the
matter.
Review of the foregoing testimony offered in support
of Objections I and 7 reveals that the Employer has
relied upon numerous incidents of alleged misconduct by
employee Union supporters who, as found supra are not
agents of the Union. It is well established that evidence
of misconduct by individuals not acting on behalf of a
party is accorded less weight than misconduct by agents,
both because such conduct is not within the control of
the parties and because conduct by mere employees has
less effect on the voters. The Cambridge Cloth Wire Com-
pany, Inc., supra. See also Connecticut Foundry Company,
247 NLRB 1514 (1980) and Central Photocolor Company,
195 NLRB 839 (1972). Also, several of the incidents the
Employer offered in support of Objections 1 and 7 oc-
curred outside the critical period and thus cannot be
found to be objectionable. Further, there was no evi-
dence that the numerous incidents of anonymous tele-
phone calls, threats and vandalism were attributable to
the Union. Moreover, mere name calling, as in the use of
the pejorative "scab" does not suffice to set aside an
election. Firestone Textiles Company, Division of the Fire-
stone Tire & Rubber Company, 244 NLRB 168 (1979).
Furthermore, with regard to the incidents involving vari-
ous Union officials, I find that the alleged conduct affect-
ed approximately eight employees out of a total comple-
ment of 493 employees. Assuming, arguendo, that such
conduct by Union officials actually occurred, I find the
various incidents isolated and insufficient to affect the re-
sults of the election. Field Container Corporation, 178
NLRB 536; Independent Nail & Parking Company, 120
NLRB 677; West Texas Equipment Co., 142 NLRB 1358.
Therefore, I find Objections 1 and 7 are without merit.
Objection 3:
Union officers and individuals acting on behalf of
the Union wore T-shirts and other campaign para-
phernalia throughout the campaign designed to
coerce and intimidate employees. In the days imme-
diately prior to the election, Union adherents and
8 I have credited Tim Johnson as a honest witness. I found him to be
responsive on both direct and cross-examination.
as Wendal Sutton was a member of the in-plant organizing committee.
At the hearing, he stated that he was a shop steward on first shift. How-
ever, the record did not reflect when he became shop steward. Employ-
er's Exhibit 11 does not list him as shop steward as of April 26, 1982. 1
have not credited Sutton's testimony regarding this incident.
88
YKK (U.S.A.) INC.
officials wore en masse T-shirts with the wording
"Vote No and Catch Hell."
With respect to Objection 3, the parties entered into
the following stipulation:
During the weeks immediately preceding the July
22nd and 23rd election, Mildred Hodges, Annie
Curry, Sarah Tufts, Irene Bonner, Janice Marshall,
Mary Moore, and other employees24 wore Union
T-shirts which said, "Vote Yes and Overcome" on
the front of the T-shirt, and "Vote No and Catch
Hell" on the back of the T-shirt.
These T-shirts were worn by a number of employ-
ees throughout the entire YKK facility.
The employer contends that these shirts had the effect
of coercing and intimidating non-union employees into
believing that they would be harrassed and retaliated
against if they did not support the Union. Therefore, the
Employer presented a number of witnesses who testified
that they perceived the wording on the T-shirts to mean
that the Union would retaliate against the non-union em-
ployees who voted no. On the other hand, the Union
presented a number of witnesses who testified that the
wording on the T-shirts meant that the employees would
"catch hell" from the Employer if they voted no and the
Union was voted out of the plant. Mildred Hodges testi-
fied that she came up with the wording, and also pur-
chased and distributed the T-shirts. Hodges testified that
she and four other women in the plant wore the T-shirts.
I have viewed the wording on the T-shirts in context
of the surrounding events during the time they were
worn to determine whether or not they interfered with
employee free choice in the election. I, therefore, find
that the subjective reactions25 of the employees to the
wording on the T-shirts are irrelevant to the question of
whether there was, in fact, objectionable conduct. I find
that the wording on T-shirts did not create a general at-
mosphere of fear and confusion so as to destroy employ-
ee free choice in the election. Accordingly, I find Objec-
tion 3 to be without merit.
OBJECTION 5:
The Union, through its literature and the rhetoric of
its agents, made appeals to racial and national origin
prejudice on matters unrelated to election issues,
thereby inflaming the racial feelings of the employ-
ees and destroying the prerequisite laboratory con-
ditions.
On June 13, 1982, the Union held a meeting at the
Hilton Hotel in Macon, Georgia. There were approxi-
mately 100 employees in attendance and short speeches
were given by each of the four International Union Rep-
resentatives present at the meeting. These representatives
24 Mildred Hodges and Annie Curry are Shop Stewards. Sarah Tufts
is Union Trustee. The other individuals named are employees of the Em-
ployer.
2' At hearing, both Employer and Union, during direct and cross-ex-
amination of witnesses, objected to questioning of a subjective nature. I,
therefore, find all subjective evidence irrelevant to the consideration of
alleged objectionable conduct.
were Joseph Swain, J. C. Todd, Robert Chapman and
Jimmy Colston. During Chapman's speech, Employer
witnesses26 Beulah Bryant, Karen Campbell, Donna
Foster, Terry Amerson and Annie Brown testified that
Chapman made a remark to the effect that "Japs are
sneaky and they proved it when they bombed Pearl
Harbor while we were asleep" Robert Chapman 27 testi-
fied that, during his speech, he explained the differences
of the Union at YKK and the "associations" that he had
read about employees that were employed in Japan.
Chapman stated that he told the employees that in the
Union plants the employees have a voice in what they
do on a day-to-day basis but it was different with the
"associations" the employees work under in Japan. He
stated that he made several references to Japanese as
highly technical people. However, he stated that he
made no references to "Pearl Harbor" and that he never
made reference to the Japaneses as "Japs." Chapman
stated that his statement, "we beat them once and we
could beat them again," referred to the Union winning
the first election in 1979.28 The Employer contends that
this statement referred to Pearl Habor and is of an in-
flammatory nature.
On July 1, 1982, the Union distributed a handbill
which was drafted by Joseph Swain. The bottom of the
handbill reflected the names of District Representatives
Joseph Swain and J. C. Todd. The second paragraph of
the handbill stated as follows:
Jay Gould, a very rich railway tycoon, once said,
"I can hire one-half of the working class to destroy
the other half." I wonder if Jay Gould was of Japa-
nese descent, or maybe a member of the YKK
Board of Directors.
The remainder of the handbill discussed several eco-
nomic issues relative to the employees at YKK. At the
end of the handbill, there were listed quotes from three
well-known individuals of the American labor move-
ment. The Employer asserts that this handbill "promoted
labor Unions as being all-American while at the same
time leaving the distinct impression that Jay Gould,
whose descent was questioned as 'Japanese,' was the an-
tithesis of what America stands for." The Employer con-
tends that this handbill "typifies the Union's racial and
nationalistic theme during the campaign."
On July 18, 1982, the Union held a meeting at the
Union hall in Macon, Georgia. There were approximate-
ly 75 to 100 employees in attendance and several of the
Union representatives gave a speech at the meeting. Em-
ployer witnesses Carol Floyd, Tony Richmon, Stephanie
Hamer and Terry Lassiter testified that, during the July
18 meeting, Union representative Colston gave a speech
and toward the end of his speech he told the employees,
*6 I found these witnesses open and honest and each of their testimony
was basically the same. However, I have not credited their statements re-
garding Chapman's usage of "Pearl Harbor" in his speech.
2? I found Robert Chapman to be a reliable witness. He appeared to be
open, honest and responsive witness although his version differs some-
what with regard to the comments he made at the meeting.
28 Union President Wayne Smith testified that Robert Chapman stated
in his speech, "we beat the Japanese once and we'll beat them again."
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"we beat the Japs after Pearl Harbor and we can beat
them again." Throughout his speech the employees
cheered and applauded him. The witnesses testified that
Japanese were referred to as "Japs" by other Union Rep-
resentatives at the Union meetings even prior to the
Union campaign. Also, the witnesses testified that the
employees in the plant regularly referred to the Japanese
as "Japs." Carol Floyd testified that she only heard the
reference "Japs" used at the Union meetings and not in
the plant among the employees. Colston, 29 however, tes-
tified that he has never made reference to the words
"Pearl Harbor" in any of his speeches to the YKK em-
ployees and that he did not refer to the Japanese as
"Japs."
Moreover, on July 21, 1982 at the plant gate, Employ-
er witnesses Lundianne Johnson, Gary Critcher and Me-
lanie Johnson testified that a number of pro-union and
pro-petition employees were handbilling. During the
handbilling, a Japanese engineer at YKK named Kenny
Nakajima drove his car through the gate. As they drove
by, a pro-union handbiller who was not identified, shout-
ed, "there goes one of those Japs." Then Union repre-
sentative Jimmy Colston shouted, "go back where you
came from, you damn Jap." Colston3 0 testified that he
made no reference to the Japanese while he was hand-
billing on July 21, 1982.
Furthermore, on the morning of July 22 and 23, 1982,
the Union distributed a handbill to YKK employees. 3 '
The handbill was signed by Joseph Swain and Jimmy
Colston. This handbill contained a statement signed by
Charles McCoy, the president of Local 580 of the
Cement, Lime, Gypsum and Allied Workers Internation-
al Union, concerning a strike by Local 580 against Pepsi-
Cola. McCoy's statement read as follows:
"I would like to set the record straight. Local 580
went out on strike because we (the local members)
voted to go out on strike! Joe Swain, our represent-
ative, tried his best to talk us out of striking, but he
doesn't have to work for Pepsi-Cola and take what
we had to take from that Company, so we voted to
strike against his recommendation.
Also YKK Japs and I guess several so-called Amer-
icans, (members of management), keep telling you
that we have all been replaced. They either don't
know what they are talking about or are just plain
lying.
An Investigation was started by the NLRB this
morning concerning the situation at Pepsi-Cola and
sa I have not credited the testimony of Jimmy Colston with respect to
the statements he made at the July 18 meeting. I have based this on his
general demeanor and his inability to recall what he stated in his speech.
Also, his testimony was uncorroborated.
30 I have not credited Colston's testimony here. I have based this on
his inability of recall and his uncorroborated testimony.
31 Employee Jimmy Wilds testified that about two weeks before the
election he went to Union president Wayne Smith and told him that he
felt some of the remarks in the Union's handbills were racist and that if
the Union wanted his support, it would have to cease such remarks.
Smith then referred Wilds to District Representative Joseph Swain.
However, Wilds did not contact Swain about the matter. I have credited
the testimony of Wilds.
I feel that we have a good chance of being out back
to work and paid for all the time lost.
After all that's said and done, if you don't have a
Union contract, you don't have nothing.l
Immediately below McCoy's statement, the handbill
read:
DON'T LET THE YKK COMPANY "SNEAK
ATTACK"3 2 YOU THE EMPLOYEES. REMEM-
BER, YOU--THE EMPLOYEES WILL BE THE
LOSER IF THE UNION IS VOTED OUTI
WE BELIEVE THAT THE COMPANY WILL
REVERT BACK TO THE TACTICS THEY USED
BEFORE THE UNION WAS EVER VOTED IN,
AFTER ALL, THE SAME MAN IS STILL THE
BOSSI
The Employer asserts that the July 1, 22 and 23 hand-
bills injected racial propaganda into the campaign and
thereby destroyed laboratory conditions for a fair elec-
tion. In addition to the July I and 22, 1982 handbills, the
Union distributed six other handbills during the critical
period which made no reference to the Japanese in any
manner.
On July 21, 1982, YKK Executive Vice President
Kitano held a group meeting with 30 to 40 employees
present. A slide presentation was shown to employees
during this meeting. Employer witness Alex Gregory,
the Vice-President of Manufacturing, testified that he
was present at the meeting and heard the employees
make comments such as "damn Japanese," "the problem
in the United States today is the damn imports," and
"the Japs." During this meeting, Union President Wayne
Smith and Recording Secretary Steve Conway were
present. Gregory testified that he did not hear any Union
official at this meeting or any other meeting held by the
Employer make any derogatory remarks about Japanese
nationals. However, Gregory stated that during the
meeting of July 21, 1982, Wayne Smith stood up and
turned to the employees behind him and stated, "Let's
go. We don't have to listen to this." Then, he led the
employees out of the room. Wayne Smith33 testified that
he led the employees out of the meeting because some of
the things that were stated by the Employer were not
true. Union witness Irene Bonner testified that the em-
ployees walked out of the meeting because they wanted
to ask questions but the Employer would not stop the
slide presentation to answer their questions. Several Em-
ployer witnesses testified that word of the walkout
spread through the plant. Employer witness Carol Floyd
testified that Plant Superintendent Mike Larkin circulat-
ed a memorandum among the employees about the walk-
out. Floyd stated that she had no knowledge of the
32 Joseph Swain testified that "sneak attack" referred to the lies the
Employer was telling the employees about him during the campaign and
he felt this was devious and sneaky. I have credited Swain's testimony. I
found him straight forward and responsive witness.
33 I found Smith to be a reliable witness with respect to this incident.
He appeared to be consistent with other testimony about what occurred
at this meeting.
90
YKK (U.S.A.) INC.
walkout other than the memorandum Larkin showed
her.
The Employer presented several witnesses who testi-
fied that obscene and anti-Japanese graffiti appeared on
several bathroom walls in the plants although several at-
tempts were made by the Employer to keep the walls
clean. Employer witness Tony Rickman testified that he
has been employed with the Employer about five and a
half years and he has continuously seen anti-Japanese
graffiti on the bathroom walls. Rickman stated that he
saw Wayne Smith writing "vote yes" on the bathroom
wall during the week of the election. He stated also that
he saw union supporter Jim Meadows writing on the
bathroom wall. Employer witness Alex Gregory testified
that he had no knowledge of who wrote the graffiti on
the walls. There was no evidence established through
witnesses or adduced to show that the anti-Japanese graf-
fiti was attributable to the Union.
The Employer presented several witnesses who testi-
fied to various anti-Japanese statements that appeared on
the shirts of several Union officials prior to the election.
Employer witness Karen Campbell testified that, about
one week before the election, she saw Union Vice-Presi-
dent Johnny Carden wearing a YKK shirt writing on the
back of it that said, "remember Pearl Harbor," "slant-
eyes speak with forked tongues," and "I am a Union-
made man." Employer witness Phil Coleman testified
that he saw Carden about two weeks before the election
with writing on the back of his shirt which said, "YKK
is cheap" and "send the high paid Japs back home." Em-
ployer witness Ed Jones testified that he saw Shop Stew-
ard John Meister, Johnny Carden and Union Supporter
Steve Harden wearing shifts with writing on the back
which said, "Japs, go home," and Carden also had writ-
ten on his shirt "YKK is damn cheap." John Meister34
and Johnny Carden36 testified that the above statements
appeared on their shirts prior to the election.
In view of the above, the Employer has relied on
Sewell Manufacturing Company, 138 NLRB 66 (1962). In
Sewell the Board set the election aside where the Em-
ployer's campaign was primarily made up of the distribu-
tion of copies of newspaper stories and pictures which
had inflammatory appeals to racial prejudice. These ap-
peals were unrelated to the election issues and they con-
stituted the core of the employer's campaign.
The Board in Sewell stated:
Viewed against the test set forth above, we find
that the Employer's propaganda directed to race ex-
ceeded permission limits and so inflamed and taint-
ed the atmosphere in which the election was held
that a reasoned basis for choosing or rejecting a
bargaining representative was an impossibility. It
seems obvious from the kind and extent of propa-
ganda material distributed that the Employer calcu-
latedly embarked on a campaign so to inflame racial
Jr I found Meister not a believable witness with respect to his denial of
making reference to the Japanese as "Japs." Union witness Johnny
Carden testified that Meister referred to the Japanese as "Japs" often in
the plant.
a3 I have credited the testimony of Johnny Carden. I found him to be
a cooperative and responsive witness on both direct an cross-examination.
prejudice of its employees that they would reject
the Petitioner out of hand on racial grounds alone.
These photographs and the news articles were not
germane to any legitimate issue involved in the
election and reinforce our conclusion that their pur-
pose was to exacerbate racial prejudice and to
create an emotional atmosphere or hostility to the
Petitioner.
We believe that by the resort to racial prejudice,
the Employer overstepped the bounds of permissi-
ble campaigning and so lowered these standards
that the uninhibited desires of the employees could
not be determined in the election.
In Sewell supra, the Board also held that "some appeal
to prejudice of one kind or another is an inevitable part
of electoral campaigning, whether in the political or
labor field. Standards must be high, but they cannot be
so high that for practical purposes elections could not ef-
fectively be conducted. There are propaganda appeals
used in elections which we do not approve or condone,
but which we tolerate, leaving the sense and judgment of
the electorate." Further, the Board held that "so long as
a party limits itself to truthfully setting forth another
party's position on matters of racial interest and does not
deliberately seek to overstress and exacerbate racial feel-
ings by irrelevant, inflammatory appeals, we shall not set
aside an election on this ground. However, the burden
will be on the party making use of a racial message to
establish that it was truthful and germane, and where
there is doubt as to whether the total conduct of such
party is within the described bounds, the doubt will be
resolved against him."
In light of the facts in this case, I find the Sewell doc-
trine not applicable. First, assuming arguendo that all of
the above acts were attributable to the Union, I find that
they were not so extensive or pervasive so as to prevent
or impede the employees' free choice in the election.3a
Secondly, only two of the Union's eight handbills distrib-
uted during the campaign contained remarks of a racial
nature. The other six handbills primarily addressed eco-
nomic matters affecting the employees. Furthermore, I
find that racial tensions, as reflected by testimony, have
existed between Japanese and American employees of
the Employer since the plant opened. Therefore, I find
that any references by the Union, while such is not to be
condoned, did not inject or exacerbate racial tension.
In Peerless of America, Inc. v. NLRB, 576 F.2d 119
(1978), the Union distributed to the employees a handbill
on each of the three days preceding the day of the elec-
tion. The last two handbills allegedly involved misrepre-
sentations regarding the Employer's discrimination on
the basis of race, sex, and national origin. The court held
that the Board did not abuse its discretion in finding that
the Union's pre-election handbills were insufficiently in-
flammatory, although they bordered on being racially or
sexually inflammatory, since they were not reflective of
se All of Employer's witnesses except perhaps one witness, testified
that they freely voted their choice in the election.
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the theme of the Union's campaign and the employees
were in a position to evaluate the truth notwithstanding
that the Employer did not have sufficient time to reply
to the handbills. See also NLRB v. Bancroft Manufactur-
ing Company, Inc., 516 F.2d 436 (1975). In the instant
case, the evidence the Employer presented in support of
Objection 5 is insufficient to establish that the Union
overstepped the bounds of permissible campaigning and
inflamed the racial feelings of the voters so as to prevent
or impede their free choice in the election. Accordingly,
I find Objection 5 to be without merit.
92