Zartic, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1994

315 N.L.R.B. 495 (N.L.R.B. 1994)

495
315 NLRB No. 63
ZARTIC, INC.
1 We agree with the Board attorney that at the very least Mayes
was an agent of the Employer.
Zartic, Inc. and International Union of Electronic,
Electrical, Technical, Salaried, Machine and
Furniture Workers, IUE, AFL–CIO, Petitioner.
Case 10–RC–14199
October 31, 1994
SUPPLEMENTAL DECISION AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The National Labor Relations Board, by a three-
member panel, has considered the Employer’s objec-
tion to an election held February 7, 1992, and the re-
port (attached as an appendix) recommending its dis-
position. The election was conducted pursuant to a De-
cision 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On December 3, 1992, the Board, by an unpublished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 determina-
tion 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 rec-
ommendations contained in the report only to the ex-
tent 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 em-
ployees attributed to a management official, and/or two
leaflets, which assertedly linked the Employer to the
Ku Klux Klan, constituted a sustained, irrelevant, in-
flammatory appeal to the ethnic sentiments of the Em-
ployer’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 objec-
tionable, and we will direct a second election.
As a preliminary matter, we note that the hearing of-
ficer who conducted the hearing subsequently became
unavailable to write the report. Accordingly, an attor-
ney 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. Ac-
cordingly, in setting forth the facts relevant to our de-
termination, 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, 235 NLRB 468, 470 (1978), enfd.
mem. 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. 188 F.2d
362 (3d Cir. 1951).
Facts
The Union is seeking to represent a single bargain-
ing 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 immi-
grants; 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, ‘‘[Y]ou
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 His-
panic employees.
In early to mid-January 1992, the Union, and espe-
cially Union Organizer Rudy Rodriguez, became inter-
ested in the tape. Rodriguez was assigned to the orga-
nizing campaign in early January and given respon-
sibility for the East Rome plant. He obtained a copy
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In light of the use of this tape by Rodriguez, who was a union
agent, we find it unnecessary to resolve whether Peck was also an
agent of the Union.
3 As with employee Peck, we find it unnecessary to resolve wheth-
er Holcomb was an agent of the Union, in view of our disposition
of this case.
4 The Board attorney did not determine what in fact occurred at
the January 29 meeting. The credited rendition above is based on
Raybun’s testimony, which the Board attorney neither credited nor
discredited. Raybun’s testimony is substantially corroborated by that
of Owens and Gaulin. We do not agree with the Board attorney’s
apparent discrediting of Owen’s and Gaulin’s testimony. Testimonial
inconsistencies concerning trivial, unrelated factual matters are insuf-
ficient to discredit Owens with regard to the January 29 incident.
See BAR, fn. 50. In addition, on our review of the P. Exh. 1, a very
brief, general affidavit given by Gaulin to the Employer on February
27, 1992, we do not find it to be necessarily inconsistent with
Gaulin’s testimony concerning the January 29 incident, and therefore
an inadequate ground to discredit him. See BAR, fn. 47. To the ex-
tent that the testimony of Holcomb may be perceived as inconsistent
with Raybun’s concerning the January 29 meeting, we discredit Hol-
comb. Holcomb testified that he, a unit employee, had a seat on the
stage with management officials Owens and Raybun for the January
29 meeting—a claim that is patently incredible. In addition, his testi-
mony about what he said at the meeting is in conflict not only with
the testimony of the three management officials above but also with
his own affidavit given to the Board and with the testimony of
Union Representative Gary Tucker regarding what Holcomb after-
ward told him about the meeting.
5 The finding that Rodriguez made this statement is based on the
undisputed testimony of employee Paulette Kirby, whom the Board
attorney apparently discredited because her testimony was given in
response to leading questions. See BAR, fn. 37. We reject the Board
attorney’s credibility resolution. The Union raised no objection to the
leading nature of the Employer’s attorney’s questions to her. The
meaning of her testimony is clear. Most significant, she affirmatively
identified Rodriguez, who was seated at the Union’s table at the
hearing, as the source of the statement; in Rodriguez’ subsequent
testimony, he did not deny that he made the statement. Overall,
Kirby’s testimony on this matter is reliable and credited.
6 The finding that this statement was made by Rodriguez is based
on the undisputed testimony of former employee Letitia Tello, who
was working for the Employer at the time of the Union’s campaign.
The Board attorney neither credited nor discredited her testimony,
but noted that the Employer’s attorney ‘‘refreshed her memory’’
concerning Rodriguez’ remark with an affidavit she had previously
given. This is an insufficient basis for either discrediting her testi-
mony or giving it little probative weight. In addition, as with em-
ployee Kirby’s testimony above, Rodriguez had an opportunity in his
subsequent testimony to deny that he made the statement, and he did
of the tape from Peck2 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 at-
tending, 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 imme-
diately preceding the election.
On January 29, 1992, about a week before the elec-
tion, the Employer held a meeting for a group of about
100 East Rome employees to address its positions re-
garding the campaign. The vast majority of the em-
ployees 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 Hol-
comb raised questions about the Peck audiotape, a
commotion ensued. Holcomb first asked about a tape
in which, as he described it, Owens stated that His-
panics 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 say-
ing, 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 em-
ployees. 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 con-
sisted 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 Em-
ployer’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 news-
paper article from 1981 about an Hispanic employee at
the Cedartown facility who was mysteriously killed.
About one-half of this reproduced, partial article con-
sisted of a photograph of the employee’s father griev-
ing at his son’s gravesite. This leaflet was made avail-
able to the employees at the Union’s office in Rome
and was distributed at at least one union meeting at-
tended 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
497ZARTIC, INC.
not do it. In the circumstances, Tello’s testimony on this matter is
reliable and credited.
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 in-
sisted 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 ob-
tained 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 em-
ployees and engaged in picketing at the Cedartown fa-
cility. With regard to the dead Cedartown employee re-
ferred to in the Union’s second flyer, there were alle-
gations at the time of his death that the KKK had mur-
dered 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 ac-
tivities in Cedartown in 1981 during the Union’s cam-
paign at the two Rome facilities.
Analysis
The seminal case for analysis of the Employer’s Ob-
jection 1 is Sewell Mfg. Co., 138 NLRB 66 (1962). In
Beatrice Grocery Products, 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 cam-
paign which seeks to overstress and exacerbate ra-
cial feelings by irrelevant, inflammatory appeals.
138 NLRB at 72. Sewell itself involved a party’s
sustained course of conduct, deliberate and cal-
culated 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 ‘‘ra-
cial, ethnic, or religious references as part of an in-
flammatory 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 elec-
tion.’’ Beatrice, supra at 303. More recently, in KI
(USA) Corp., 309 NLRB 1063 (1992), we established
an analytical approach for Sewell issues: we will assess
the ‘‘intent’’ of the party accused of the relevant mis-
conduct as well as its ‘‘likely effect on the unit em-
ployees in question,’’ for the purpose of ascertaining
‘‘whether this conduct so clouded the election atmos-
phere 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 elec-
tion, certain matters implicating the ethnic concerns of
the Employer’s Hispanic employees—a significant ma-
jority 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 Se-
well. However, even with the legitimacy of this con-
duct assumed, the tape’s inflammatory content, espe-
cially when it was recounted as referring to the Em-
ployer’s Hispanic employees, is undeniable. The use of
the Peck tape created a volatile atmosphere in the cam-
paign. 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 big-
otry, but was also of particular significance to the His-
panic 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 Rodriguez attempted to
connect the Employer directly with the KKK at a
union meeting through an unsupported statement con-
cerning 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 ad-
dition, both flyers drew the Employer into the Union’s
message at least implicitly by reference to past occur-
rences at its Cedartown plant.
The Union defends its use of the ‘‘Cedartown em-
ployee’’ 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
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 ‘‘All full-time and regular part-time production and maintenance
employees, including quality control employees employed by the
Employer at its Rome, Georgia facilities, excluding office clerical
employees, professional employees, managerial employees, guards
and supervisors as defined in the National Labor Relations Act’’ was
the unit found appropriate.
2 Resolution of the remaining challenged ballots, except that of Su-
pervisor Rhonda Rayes, agreed to be excluded, and of the objections
was held in abeyance pending a count of these ballots, albeit a con-
ditional hearing was directed on the challenged ballots.
3 The formal papers before me contain an incomplete copy of the
request for review, there being no exhibit attached thereto as averred
in said request.
4 This Supplemental Decision avers the denial of the aforemen-
tioned request for review on May 14, 1992. A copy of this document
is not a part of this record.
5 The Petitioner, now the winner of the election, had its objections
declared moot.
6 Again materials allegedly appended to the Employer’s documents
are not a part of the formal document in the paper presented to me.
Cf. Hubert Halperin Distributing Corp., 281 NLRB No. 1 (1986)
(not reported in Board volumes).
7 A copy of this order is made a part of the record as Board Ex-
hibit.
8 While certain hyperbole is expected in brief, especially where ar-
gument is had, I was surprised that the statements of fact in the Em-
ployer’s brief grossly misrepresented even the evidence cited therein.
This did little to persuade me of the correctness of the Employer’s
representation of evidence. Specifics may be referred to hereinafter
as necessary and as bearing on credibility issues before me. To in-
sure that my concerns about the brief did not overly affect my find-
ings, I note that I had read the transcript prior to reading the brief,
reaching certain conclusions based on prior research. Following read-
ing the brief, and prior to reaching final conclusions, I re-read the
transcript to see if my original reading was correct. Thereafter, as
I wrote, and as I came across a problem area, I re-read those parts
of the transcript cited by counsel to ascertain again the facts as op-
posed to statements that were untrue.
9 The parties’ motion to correct the transcript is granted, and the
motion is made part of the record as Bd. Exh. 4.
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 expla-
nation. We find the Union’s asserted justifications for
the flyers 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 circula-
tion of the two leaflets constituted a sustained appeal
to the ethnic sensibilities of the Employer’s Hispanic
employees which was inflammatory, gratuitous, and ir-
relevant 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 lack-
ing 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 Rodriguez, 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 elec-
tion could not be held. Accordingly, we will direct a
new election.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
On January 8, 1992, a Decision and Direction of Election
issued in this case. Pursuant thereto, an election was con-
ducted among the employees in the appropriate unit on Feb-
ruary 7, 1992.1 Subsequent to the balloting, the parties were
provided a tally of ballots showing 260 valid votes for and
219 valid votes against the Petitioner. There were 68 chal-
lenged ballots which affected the results of the election. Both
parties filed timely objections to the election. On March 26,
1992, a Supplemental Decision and Order issued based on
the agreement of the parties that 46 employees whose votes
were challenged were, indeed, eligible to vote.2
The Employer filed a request for review of the supple-
mental decision because the Regional Director did not ad-
dress the parties’ objections to the election.3 The Petitioner
filed an opposition to Employer’s request for review. On
June 11, 1992, a Second Supplemental Decision and Certifi-
cation of Representative issued.4 A revised tally had been
given to the parties on May 27, 1992, showing 279 valid
votes for and 244 valid votes against the Petitioner. The re-
maining 21 challenged ballots did not affect the results of the
elections. The Regional Director overruled the Employer’s
objections in their entirety.5
On July 7, 1992, the Employer mailed its ‘‘Exception to
the Decision the Regional Director’’ and a supporting brief.6
The Petitioner then filed an answering brief to the Employ-
ee’s exceptions. Apparently the brief was filed late because
the Employer filed a brief in opposition to the Union’s mo-
tion for permission for late filing of answering brief. On De-
cember 3, 1992, the Board issued a Decision and Order Re-
manding Proceeding for Hearing, directing hearing solely on
the issues raised by Employer’s Objection 1. On January 14,
1993, a notice of hearing objection issued, and, on February
3 and 4, 1993, a hearing was held before a duly designated
hearing officer. On July 2, 1993, an order issued assigning
the case for decision to a different Board agent due to the
unavailability of the hearing officer.7 I have inherited that
role. I have thus read the transcript, read the written exhibits
in their English versions only, viewed videotapes submitted
as evidence, and have listened to the Peck/Mayes audiotape
which is discussed, infra. I have considered the parties’ briefs
where pertinent to the issue involved herein.8
I have considered the entire record with great care.9 My
findings herein are based on my evaluation of the proffered
testimony, having had, of course, no occasion to observe the
witnesses as they testified. I made determinations of credibil-
ity, where required, based on my analysis of the partisan in-
terests of the witnesses, guarded or indirect answers,
499ZARTIC, INC.
10 E.g., Bausch & Lomb, Inc., 185 NLRB 262 fn. 4 (1970).
11 The Employer’s ‘‘statement of facts’’ that Peck was an em-
ployee of the Petitioner is not even supported by its own citations
to the record in its brief. For example, the Employer cites Tr. 341
to prove Peck to be an employee of the Petitioner apparently on the
following testimony:
Q. Were you an employee of the union?
A. No.
12 There exists ghost or trace issues wherein names of supporters
of the Petitioner who may or may not have been involved in issues
related to the objection came forward. To the extent that they are
not discussed herein, I have found that the Employer has failed to
provide evidence worthy of discussion with regard to such allega-
tions.
13 Cambridge Wire Cloth Co., 256 NLRB 1135 (1981). See also
Benjamin Coal Co., 294 NLRB 572 (1989); Pierce Corp., 288
NLRB 97 (1988).
14 Bristol Textile Co., 277 NLRB 1637 (1986).
15 Davlan Engineering, 283 NLRB 803 (1987).
16 United Builders Supply Co., 287 NLRB 1364 (1988). See also
Advance Products Corp., 304 NLRB 436 (1991).
17 Service Employees Local 87 (West Bay Maintenance), 291
NLRB 82 (1988). See also Allegany Aggregates, Inc., 311 NLRB
1165 (1993). Compare Bio-Medical Applications of Puerto Rico, 269
NLRB 827 (1984).
conclusional testimony as distinguished from fact, self-serv-
ing answers, answers to leading questions on direct examina-
tion, testimony unprompted by a question, general memory
for detail, ability to comprehend questions and answers there-
to, and patent incredibility of answers.
Where deemed necessary, I shall state my specific find-
ings, and reasons therefor. I may not allude at all to testi-
mony I deem entirely unworthy of belief. I note further that
the hearing was occasioned by the Employer’s objections and
its exceptions to the Board opposing the Regional Director’s
findings. It is well established that the burden is on the ob-
jecting party to show that the election was unfair.10 Thus, I
turn now to the evidence presented on the objection which
objection I also set forth now for the purpose of style.
Objection 1: The Petitioner, through its agents, rep-
resentatives or employees, appealed to the racial preju-
dice and/or fear of racial prejudice of Z-Bird’s employ-
ees thereby interfering with the rights of said employ-
ees to freely choose a bargaining representative and de-
stroying the laboratory conditions necessary for a valid
election.
I. INTRODUCTION OF CASE
The Employer basically contends that four matters argu-
ably establish its stated claim, above. The first of these is the
dissemination by the Petitioner of a leaflet, received as Em-
ployer’s Exhibit 1. The second argument concerns the dis-
semination of a document received as Employer’s Exhibit 2.
A third element involved an audiotape recorded by employee
Chad Peck and allegedly used by the Petitioner in its cam-
paign herein, and, finally, a ‘‘disruption’’ of a meeting held
by the Employer by employee Mark Holcomb, wherein he
allegedly invited racial and/or ethnic strife between Hispanic
employees and the Employer. The Employer contends that
Peck and Holcomb are agents of the Petitioner.11 The Em-
ployer also argues that, should one or more of its specific as-
sertions fail to be sufficient to set the election aside, all must
be looked at as a body to determine whether the Petitioner’s
campaign was totally tainted by race or ethnic consider-
ations.12
Prior to a discussion of the issues individually and collec-
tively, I find it more logical to discuss first the legal authori-
ties I deem applicable and controlling to these matters.
Thereafter, I shall set forth the evidence proffered by the par-
ties, following which I shall note my conclusions as to the
effect of the law on these facts.
II. THE LAW
A. Agency
The status of members of union organizing committees or
employee solicitors of union support, including cards and pe-
titions, has had a mixed history when it comes to establish-
ing agency thereof. The Board has held that members of an
in-plant organizing committee are not, simply by virtue of
such membership, agents of ‘‘their’’ union for the purposes
of making threats or statements. Further, card solicitation
also does not add stature to such employees. The in-plant or-
ganizing committee must be shown itself to be an agent of
the union before the conduct of the committee members will
be impacted to the union.13 To a seeming contrary result, the
Board has found that ‘‘well-known’’ prounion employees,
who were the union’s sole link to the employees and who
were used as conduits by the union were held out as agents
by the union.14 Further, the Board has found that in the ab-
sence of extraordinary circumstances, employees who solicit
authorization cards should be deemed special agents of the
union for the limited purpose of assessing the impact of their
statements to employees about purported union policies.15
The Board, in discussing the agency status of a vocal and
active union adherent who solicited cards, set up meetings,
and served as the union’s election observer, stated in a later
case that these activities were a manifestation to employees
of agency status broad enough to render the employee a
‘‘general agent.’’ Although the Board found a possible ‘‘im-
plied manifestation’’ of agency status, it found no implied
ratification of the employees’ actions absent union awareness
thereof. Bristol, and Davlan supra, were distinguished by the
Board.16
Apparent authority, says the Board, is created through a
manifestation by the principal to a third party that supplies
a reasonable basis for the latter to believe that the principal
has authorized the alleged agent to do the acts in question.
The principal must intend to cause the third party to believe
the agent is authorized to act for him or the principal should
realize that its conduct is likely to create such a belief. Ab-
sent these criteria being met, a principal can affirm the al-
leged agent’s actions subsequent thereto by its manifestation
to treat the act as its own or by conduct justifiable only if
the principal elected to ratify the act as its own, such as a
failure to repudiate.17
In cases involving in-plant committees and card solicitors,
the Board has looked at the campaign’s structure. Thus,
much emphasis as a manifestation of agency is on the lack
union presence in the campaign. When the union has shown
a strong and regular presence in the campaign, has been
available to employees to speak to its representatives on be-
half of the Union, and has held frequent meetings at which
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 I.e., Advance Products, supra; S. Lichtenberg & Co., 296 NLRB
1302 (1981); Pierce, supra; United Builders, supra; Cambridge Wire
Cloth Co., supra. Compare Bristol, supra, wherein the union abdi-
cated its lead role to its employee organizers. Cf. Bio-Medical,
supra, where both the union and the employee-agents were visible.
19 Kresge-Newark, Inc., 112 NLRB 869 (1955).
20 Sewell Mfg. Co., 138 NLRB 66 (1962).
21 Universal Mfg. Corp. of Mississippi, 156 NLRB 1459 (1966).
22 Baltimore Luggage Co., 162 NLRB 1230 (1967).
23 Bancroft Mfg. Co., 210 NLRB 1007 (1974).
24 Coca-Cola Bottling Co., 232 NLRB 717 (1977). Compare YKK
(U.S.A.), Inc., 269 NLRB 82 (1984), in which, among other matters,
references to Pearl Harbor and ‘‘sneak attacks’’ were found not to
be germane to legitimate campaign issues.
25 Coca-Cola/Dr. Pepper Bottling Co. of Memphis, 273 NLRB 444
(1984).
26 Beatrice Grocery Products, 287 NLRB 302 (1987).
union principals themselves were available and in control,
the Board has found no agency on the part of individuals,
notwithstanding their strong, open, and vocal union support
and activity.18
B. Appeals to Prejudice
1. Union responsibilities
In an early case, a union representative was alleged to
have stated at meeting that, if the petitioner did not win the
election, the employer would lay off all ‘‘colored employ-
ees,’’ thus, the only way to spare their jobs was for them to
vote for the union. The Board found such a statement to be
campaign rhetoric which the employees could evaluate as an
accusation. According to the Board, a layoff was without the
power of the union to accomplish.19 Some few years follow-
ing this decision came the Sewell case, which both parties
agree contains the controlling principles of law for this
case.20
In Sewell, the Board acknowledged that some appeals to
certain prejudices of one kind or another were inevitable
parts of union campaigns. Thus, no per se rule was to be
enunciated. The Board did state that appeals to racial preju-
dice on matters unrelated to election issues, or to union ac-
tivities are not to be considered mere ‘‘prattle’’ ‘‘puffing.’’
The Board said such had no place in a union campaign.
However, said the Board, so long as a party limits itself to
setting forth truthfully the other party’s position on matters
of racial interest and does not deliberately seek to overstress
and exacerbate racial feelings by irrelevant, inflammatory ap-
peals, the Board will set aside elections on that basis. The
Board placed the burden on the party making use of a racial
message to establish that it was truthful and germane to the
campaign. Any doubt as to whether the total conduct of such
a party lays within the prescribed bounds of conduct is to be
resolved against that party.
In later cases, the Board undertook to explain the Sewell
findings. Thus, it has stated that Sewell stands for the propo-
sition that the Board will not tolerate racial propaganda un-
less such meets certain conditions. Such propaganda must be
truthful, temperate, and germane to a party’s position, and
the party must not deliberately seek to overstress and exacer-
bate racial feelings by irrelevant, inflammatory appeals.21
Otherwise stated in later proceedings, a party is free to ap-
peal to racial pride but cannot use campaign arguments that
are inflammatory in character, setting race against race, or
appealing to animosity rather than to consideration of eco-
nomic and social conditions and circumstances and of pos-
sible actions in response to them.22
Yet later, the Board cited Sewell as being applicable only
in those circumstances where it is determined that the ‘‘ap-
peals and arguments can have no purpose except to inflame
the racial feeling of voters in the election.’’23 In this case,
rumor abounded that, if the black employees did not stay to-
gether as a group and the union lost, all the black employees
would be discharged. The Board found layoffs to be of ut-
most concern to employees and the union’s viewpoint on the
possible impact of layoffs relevant to the campaign. Thus,
appeals to racial pride, racially concerted activities and racial
solidarity are lawful concerted activities. A further refine-
ment was later reinforced that Sewell required ‘‘sustained ap-
peals’’ to racial prejudice, again such going beyond state-
ments germane to legitimate campaign issues.24
Comments ‘‘obviously’’ designed to express the views that
blacks had not been treated fairly by their employer and that
they needed to do something about it have been held to be
comments directed to black employees’ perceived relation-
ships with their employer and their dissatisfaction with the
terms and conditions of their employment. The question of
whether employees have been unfairly treated for whatever
reason is always a legitimate topic of discussion in a union
campaign. Whether the remarks are even accurate as to the
instant Employer is of little consequence in determining
whether a ‘‘legitimate campaign issue’’ exists, since such
statements to be objectionable must be so inflammatory as to
make a fair election impossible.25
In the same vein, the Board looked at a statement by a
union representative that a supervisor had called the employ-
ees ‘‘dumb niggers.’’26 This, of course, contained clearly an
offensive racial epithet, and, according to the Board, may
well have been an untrue report of what any representative
of the Employer had said. However, employees had com-
plained about treatment at work, which rendered the offen-
sive statement germane to the campaign. While the Board
noted that it did not condone the use of racial or ethnic epi-
thets, it found that the union representative did not attack a
particular racial, ethnic, or religious group as part of an in-
flammatory campaign theme. Rather, said the Board, it was
used as an attempt to denounce racial prejudice on the part
of the Employer rather than to invite prejudice against a
group or sect by the Union.
A more recent case involved a union, which, on the eve
of an election, circulated a copy of a letter by a Japanese
businessman that made assertions that contained elements of
prejudice and bias against American workers. The distribu-
tion was to employees working for a Japanese-owned em-
ployer. Again, the Board noted that the treatment of employ-
ees had been an issue in the campaign. Thus, said the Board,
it would look to the intent of the union under the Sewell cri-
teria, to ascertain what a party ‘‘seeks’’ as well as the likely
effect of such statements on unit employees. The Board held
that even specific claims that a party to the election, or one
of its agents, is biased in terms of race or national origin
may be a permissible topic during an election campaign.
How workers are regarded by management is a relevant cam-
paign issue as are perceived work place attitudes between
501ZARTIC, INC.
27 KI (USA), Corp., 309 NLRB 1063 (1992).
28 This is not encompassed by the strict wording of Employer Ob-
jection 1, nor the remand of the Board. However, I find it implicit
in the litigation and subject to review and finding by me. Further
to do so leads to no further possible litigation. See, e.g., NuSkin
International, 307 NLRB 25 (1992).
29 S. Lichtenberg & Co., supra. See also Brightview Care Center,
292 NLRB 352 (1989), involving slurs by unidentified employees,
and Benjamin Coal Co., supra.
30 Hobco Mfg. Co., 164 NLRB 862 (1967).
31 Staub Cleaners, Inc., 171 NLRB 332 (1968). See also Singer
Co., 191 NLRB 179 (1971).
32 Owens-Corning Fiberglas Corp., 179 NLRB 219 (1969); Fore-
most Dairies of the South, 172 NLRB 1242 (1968).
33 Information Magnetics Corp., 227 NLR8 1493 (1977).
34 The film shown at the January 29, 1992 meeting by the Em-
ployer discussed this matter. No one could place when this leaflet
was prepared other than within a week or two of the election. The
Employer argues strenuously the last-minute effect of such coming
right before the election. Tucker agreed that it could have been made
available the day before or two days before the election.
35 Unfortunately, no employees were called to testify with regard
to the Employer’s campaign. The film shown to employees on Janu-
ary 29, 1992, did have references to Cedartown and the strike.
36 Browning testified without contradiction that nonemployee peti-
tioner representatives had no access to employee parking lots.
37 Kirby’s testimony is almost completely the words of Employer’s
counsel who either led her to a ‘‘yes’’ answer, or led her to repeat
his words as her answer. I am unable to give much credence to her
testimony because I can not glean therefrom what she actually knew
or did not know. Because of the nature of the questioning, she was
given no real opportunity to relate her own memory of events.
employees and employers. Although the Board questioned
whether the union’s distribution of the letter was a meaning-
ful contribution to the campaign, it stated its task was solely
to determine whether the conduct so clouds the election at-
mosphere as to require setting aside the election.27
2. Atmosphere in general
Assuming a finding of a lack of responsibility on the part
of the petitioner to engage racial strife and prejudice to a
level requiring a second election, I must, I believe, determine
whether the actions of Peck and Holcomb may have dam-
aged the requisite laboratory conduct.28 According to the
Board, Sewell by its own terms applies only to parties and
their agents.29 In Lichtenberg, an employee reported that a
first line supervisor had allegedly stated to another supervisor
that she did not want the union to come in ‘‘because a bunch
of niggers would be running the plant’’ and that they should
be sent ‘‘back to the cotton fields.’’ The election was not set
aside. The supervisor allegedly involved denied the state-
ment, which denial was widely disseminated. There was also
no evidence that the union sought to take advantage of any-
thing it reasonably believed to be a falsehood.
Cases involving ‘‘rumors’’ have been closely scrutinized.
Thus, a rumor that the employer would replace ‘‘Negro’’
employees with white employees if the union lost an election
did not result in the election being set aside where the Board
found that the rumor was not sufficiently widespread.30 In a
later case, a rumor abounded through an employee that the
employer’s president had stated that, if the union won the
election, he would discharge the ‘‘Negro’’ employees. Here,
the Board found that the rumor was sufficiently neutralized
and dissipated before the election by repeated disclaimer by
both the employer and the union.31
Accordingly, I find a stricter burden of proof to be placed
on the objecting party to establish that the conduct of third
parties was of so serious a nature that it could only result
in an atmosphere of widespread confusion and fear thereby
rendering impossible a rational, uncoerced choice by the em-
ployees.32 When the sources of alleged racial or ethnic ap-
peals are third parties, they must further be analyzed to see
if such statements were calculated to coerce votes for the
prevailing party.33
III. THE PARTIES’ EVIDENCE
A. The ‘‘Klan’’ Leaflet
The Employer’s Exhibit 1 is photocopy of part of an arti-
cle in the Sunday, July 26, 1981, edition of the Atlanta Jour-
nal and the Atlanta Constitution. It depicts persons in Ku
Klux Klan regalia alongside a black man who is holding a
sign that reads ‘‘On Strike Bettter Working Conditions.’’ Ac-
cording to the article, black and white employees of Zartic’s
Cedartown, Georgia operation were joined Klansmen on a
picket line. The rest of the partial article dealt with the Klan
and its activities.
According to Gary Tucker, called by the Employer as its
first witness albeit an agent of the Petitioner, the Petitioner
made this article available to employees of the Employer in
response to the Employer showing films regarding the strike
in Cedartown in 1981.34 According to both Tucker and Peti-
tioner’s representative, Garney Browning, employees were
concerned over discussions by the Employer about the Peti-
tioner’s involvement in the strike and racial hostility at
Cedartown. Tucker stated that employees were discussing the
racial tension and violence attendant to the strike as part of
the campaign Rome.35 Tucker said the article was made
available to employees to defend against the perception that
the Petitioner was involved at Cedartown, since it was the
United Food and Commercial Workers’ Union which orga-
nized Cedartown. Thus, according to Tucker, the article was
used to show that the Petitioner was not responsible for ra-
cial tension at Cedartown.
Paulette Kirby testified that she saw this document when
it was placed under her windshield in the plant parking lot.36
She also testified that one was on her chair at ‘‘a’’ meeting,
although not on chairs that she ohserved. Kirby did not recall
the article being discussed at the meeting. With much leading
and prodding by Employer’s counsel, Kirby squeezed out
that, at ‘‘the meeting,’’ ‘‘that guy,’’ apparently referring to
International Representtive Rudy Rodriguez, stated that the
Employer gave money to the Klan in Cedartown. No context
was presented for this apparently isolated statement, and no
corroboration was presented either. Kirby did tesify that she
had ‘‘heard’’ that the Employer raised the Cedartown strike
during the campaign, but asserted such was raised only after
the Employer’s Exhibit 1 was made available.37
Cathy Powell testified that ‘‘they’’ were handing out this
leaflet at union meeting. Powell testified that she attended
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 October would precede the filing of the petition and would also
precede every one else’s memory of when the leaflet was made
available. As I note later, Powell appeared confused about every de-
tail of her testimony.
39 The Employer brought out through this witness that Hispanics
were afraid of the Ku Klux Klan and that the Cedartown strike was
a topic of conversation among the employees. She could not remem-
ber whether the Employer ever mentioned the strike.
40 See fn. 37, supra, with regard to Kirby’s testimony.
41 Felan was not called as a witness at the hearing.
‘‘some’’ union meeting when the meetings first started. She
believes the meetings she attended were probably in October
since both the Petitioner and the Employer we having cook-
outs.38 Finally, the Employer called Letitia Tello who testi-
fied that the Hispanic employees talked about the 1981
strike, but that she did not remember whether the Employer
ever mention it.
Garney Browning is the co-director of organization for
District 1 of the Petitioner. As such, he was in charge of the
instant campaign. He testified that he got a copy of Employ-
er’s Exhibit 1 from the files of the attorney who represented
the UFCW in its Cedartown campaign. Browning testified
that employees were coming to meetings after the Employer
had shown them a film, telling the Petitioner’s representative
that supervisors were telling employees that the Petitioner
was involved in the Cedartown union campaign. Bronwning
states that Employer’s Exhibit was given out to explain that
the Petitioner had not been involved in the Cedartown cam-
paign. Browning states he told the employees what he re-
membered about the campaign. Browning states that this
document was never used as a leaflet to be handed out at
the Employer’s premises. International Representative Rudy
Rodriguez, who made the copies of newspaper article, testi-
fied also that employees were telling him that the Employer
was saying the Petitioner was involved in the Cedartown
strike. Rodriguez stated that the handout was to deny his
union’s involvement. Apparently, he thought, the verbal deni-
als by Petitioner’s representatives were less persuasive than
a newspaper article.
B. The ‘‘Murder’’ Leaflet
Employer’s Exhibit 2 is a photocopy of another partial ar-
ticle, apparently from the November 30, 1981, edition of the
Atlanta Constitution. The part of the article reproduced dis-
cussed the death an alleged illegal Mexican alien who had
gotten a job at Zartic in Cedartown. No mention was made
in the article about any labor matters or union activity. Ac-
cording to employee Letitia Tello, the article was passed out
at a union meeting. Originally she testified that she could not
remember any conversation about the leaflet. Later, when
‘‘refreshed’’ on the Employer’s redirect examination with an
affidavit she apparently gave to the Board, she remembered
discussing Employer’s Exhibit 2 with union officials. Ac-
cording to this new recollection, Rodriguez told the employ-
ees that the Ku Klux Klan had killed ‘‘that boy.’’ She admit-
ted that no union official ever said the Employer was respon-
sible for the death of the featured young man.39 The Em-
ployer also argues that the alleged statement by Rodriguez
testified to by Kirby and discussed, supra, that the Employer
gave money to the Klan, proves in some way that the Peti-
tioner was saying that the Employer paid for the killing of
this unfortunate youth. The Employer provided no factual
context from which I could draw such a conclusion.
Petitioner’s representative, Browning, says that he also got
this document from the files of the UFCW from its
Cedartown campaign. He states he had the document in his
office ‘‘as a matter of information or historical value as to
about the Mexican people’s problems in this area.’’ He said
copies were made which remained in the office for about 3
days. Tucker testified that the Petitioner did make copies of
the partial article, which copies were in the Petitioner’s of-
fice. He said they were not openly distributed.
C. The Peck Tapes
The Employee argues that Chad Peck was an agent of the
Petitioner who introduced into the campaign a tape recording
he made of a conversation in which certain derogatory com-
ments allegedly were made about Mexican employees. Ac-
cording to the Employer, the Petitioner made use of this tape
recording to fuel the flames of ethnic (racial) unrest against
the Employer.
Paulette Kirby testified on behalf of the Employer. She
testified that she attended two preelection meetings at the
Rome union hall. According to Kirby, a ‘‘Mexican guy’’ sit-
ting beside her at a meeting to the ‘‘union guys’’ that Fran-
cois Gaulin ‘‘had called the Mexicans a pack of dogs, rats
or something like that.’’ She alleges that Petitioner’s rep-
resentative, Rodriguez, translated the remark. Kirby cannot
speak Spanish, and the speaker spoke no English. No tape
recording was played at this time, although, according to
Kirby, a tape was discussed.40
Letitia Tello, another Employer witness, testified that she
also attended a couple of union meeting at the IUE hall. At
one of these meetings, she recalled talking to Petitioner’s
representative, Eddie Felan, who ‘‘started telling me about
Francois, that he had a tape about Francois saying that he
said that Mexican people were animals and they should be
treated as animals.’’ According to Tello, Felan had asked her
early in this conversation to help him house call on behalf
of the Petitioner. This conversation was between the two of
them and was after the Petitioner’s meeting at which this ra-
cial matter had not been discussed. Felan allegedly promised
to play the tape, but he never did.41 She also testified that
the tape was not discussed at all at the other meeting she at-
tended.
Esteban Cortez testified that he attended a meeting at the
Holiday Inn with approximately 50 employees, the majority
of whom were Mexican. He initially stated that certain union
representatives whose names he did not know, but then he
identified as Rodriguez and ‘‘Eddie,’’ played a cassette. The
recording, according to Cortez, spoke about Francois Gaulin
saying Mexicans liked to live like animals so that is the way
they were going to be treated, as animals. Cortez acknowl-
edged that the recording was in English with background
plant noises and that he could not understand it very well.
The recorded words were not translated into Spanish, but
‘‘Mr. Eddie’’ said it was Francois’ voice on the tape. He said
some employees got very mad at the hearing of the tape, but
that these were employees who had worked with Gaulin and
who said Gaulin treated them ‘‘very, very badly.’’ Cortez
later testified that he could not say that he heard the word
503ZARTIC, INC.
42 Powell did not seem to know any of the employees or persons
present. She identified no union representatives, and, in fact, testified
that this was not a meeting as such but a cookout among friends.
A goodly part of Powell’s testimony was volunteered when no ques-
tion was pending. I was not favorably impressed.
43 Counsel for the Employer attempts in his brief to explain the
inconsistencies in this testimony. I was not persuaded thereby.
44 While I do not like the surreptitious recordinys of conversations,
Peck’s motives in so doing can be understandable, especially in view
of the allegations in the order consolidating cases, consolidated com-
plaint and notice of hearing issued in Cases 10–CA–25786, 10–CA–
25909, and 10–CA–26161. Although such is not a finding of guilt,
I assume the Employer placed it in evidence for some probative pur-
pose.
45 Mayes’ status is discussed, infra.
46 Contrary to the assertions in the Employer’s brief, Peck never
testified that he wanted incriminating evidence for use in the Peti-
tioner’s campaign.
‘‘animals’’ on the tape, that he could not understand the tape
very well, and that he was not close to the cassette player.
Cathy Powell was the final employee witness concerning
the tape called by the Employer. She stated that she attended
a ‘‘meeting’’ at which tape regarding a statement Gaulin al-
legedly made was discussed. ‘‘They said they had a tape that
Francois made telling about the Mexicans eating like animals
and sleeping like animals.’’ According to Powell, she heard
several of ‘‘them say that it was not Gaulin’s voice on the
tape,’’ and stated she knew it was not his voice on the tape.
She ultimately testified that she heard the tape at a trailer in
West Rome, Georgia, with a group of six to seven employ-
ees.42 She said the voice on the tape was not Gaulin’s but
was only Chad Peck’s voice on the tape. According to her,
Chad Peck had told her before that it was not Gaulins’ voice
on the tape, having earlier testified that Peck had told her
that he taped ‘‘Francois about the Mexicans.’’43
Chad Peck was called by the Petitioner to testify. Peck
stated that he began carrying a pocket tape recorder around
the plant in mid- to late November 1991.44 He said that
things were becoming ‘‘strange’’ in the plant because of the
Petitioner’s campaign, and that two of his coworkers, Donald
Johnson and Bill Baker, had been discharged. He asked his
‘‘supervisor,’’ Steve Mayes,45 why the two were discharged.
According to Peck, Mayes stated he did not know. Later in
the day of this query, Mayes returned to the shop where
Peck was. Peck states he had the recorder on to get ‘‘in-
criminating evidence’’ as to why the two employees had
been discharged. He testified he wanted also to record con-
versations to protect himself.46
Peck states that Mayes began talking about the two em-
ployees. Mayes then said that, within the first week he start-
ed working in the plant, Gaulin called him, James Holder,
and Tommy Owens into the office. At that time, according
to Peck, Mayes said that Gaulin had stated that the Mexican
people who worked there live in trailers with no electricity
and no heat, and that they slept on the floor. Mayes went
on that Gaulin stated that they were the closest things to ani-
mals and to treat these people like animals. You have to
push these people and push them.
The tape recording was introduced into evidence, played
in pertinent part on the record, and transcribed into the
record by the court reporter. I too have listened to the tape
and find the version transcribed very close to what I heard.
Many words are unintelligible, some conversation is one
speaker over the other speaker, and there is noise in the
background. Contrary to the testimony of Cathy Powell, dis-
tinct voices are discernible on the tape. The early part of the
conversation is a discussion of an incident that occurred in
which discipline was apparently meted out to some employ-
ees. Mayes then stated that the very first week he worked at
this plant he heard Gaulin ‘‘cussing’’ people. Mayes contin-
ued that Gaulin got him into the office one day and told him,
and possibly two other persons, ‘‘you’ve got to push these
people.’’ ‘‘You’ve got to push these people. Most of these
people sleep on the floor of a trailer that ain’t got no damn
electricity. They’re the closest things to animals they could
be.’’ According to Mayes, Gaulin continued, ‘‘You’ve got to
treat them that way.’’ Mayes stated he shook his head and
left the office. Further conversation about Gaulin’s manage-
ment style ensued on the tape. Neither I nor apparently the
court reporter discerned the word ‘‘Mexican’’ on the tape.
Peck further testified that he had mentioned to the Peti-
tioner’s representative, Tucker, that he had some recordings.
According to Peck, the representative told him ‘‘Just put
them up and keep them. They might be of some use in the
future if we get in a tight spot.’’ Peck placed this conversa-
tion in late December 1991, subsequent to his December 3,
1991, discharge, allegedly for union activities. He first had
told Tucker he had some tapes of conversations between
himself and a couple of supervisors in his discharge meeting.
Only later did he tell Tucker about the Mayes conversation
and, at Tucker’s request, made him a copy. Later, according
to Peck, Tucker called him and said he could not understand
the tape. Peck states he also had told some fellow employes
he had a tape recording of someone repeating what Gaulin
had said. He was asked about it by Representative Rodriguez
who asked for a copy of the tape. Peck made Rodriguez a
copy, but it apparently was not comprehensible. Two weeks
later, Peck played the original tape for Rodriguez who told
Peck, ‘‘Boy, I wish you’d got this to me earlier.’’ Peck said
he told about 30 people about his tapings, including playing
them for some people. These tapings included the Mayes’
discussions as well as a ‘‘bad attitude’’ lecture to Peck, and
other recorded conversations. No one pursued how many
playings to employees involved the alleged Mayes/Gaulin
conversation.
Petitioner’s representative, Browning, stated that, during
the campaign, employees complained at union meetings con-
cerning treatment they had allegedly received at the hand of
Gaulin. He further testified that he had heard rumors that
there were numerous tape recordings made by some ‘‘8(a)(3)
people’’ who went into supervisors’ meetings. He had also
heard rumors that a tape existed that had some derogatory
statements in regard to Gaulin. Browning states he never had
a copy of the tape until after the election although he heard
Rodriguez had heard it. He recalled asking Rodriguez for a
copy of the tape and being told the copy was not a legible
copy. He also stated he never mentioned the tape during all
meetings he conducted.
Representative Rodriguez testified that Peck helped with
the handbilling at the East Rome plant. During one of these
times, Peck mentioned to Rodriguez that he had taped sev-
eral conversations. They discussed generally what was on the
tapes at first. Later, when the conversations got more spe-
cific, Rodriguez said that if someone were making racial re-
marks he definitely would be interested in that portion of the
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 Testimony both by Gaulin and about Gaulin was intriguing.
Gaulin testified that he was so bothered by the events of January 29,
1992, that he immediately gave a statement to corporate counsel of
all that had happened that day. He recalled signing a statement that
was ‘‘word to word’’ what had happened to him on January 29,
1992. It was to Gaulin an accurate reflection of what had happened
at the meeting. Further, he testified that he told the attorney every-
thing that happened and the statement was word for word what he
told the attorney. The statement, in evidence as P. Exh. 1, makes
no mention of any chair throwing or other riotous conduct. On redi-
rect, counsel for the Employer attempted to impeach Gaulin by get-
ting him to testify that, perhaps, P. Exh. 1 was not as precise a state-
ment as he had so painstakingly described it on questioning by the
Petitioner’s counsel. Needless to say, I was left finding Gaulin with
little or no credibility.
48 Employer’s counsel continually refers to this ‘‘production super-
visor’’ as an employee, apparently to bolster his credibility. How-
ever, Tello knew he was a supervisor and so testified.
49 Tello testified at the hearing through an interpreter.
50 Owens originally stated he was hired as plant manager of the
East Rome plant to boost production and morale. According to his
testimony on the Employer’s direct examination, morale was getting
better until the ‘‘union time.’’ On cross-examination, he testified that
morale was improving until January 29, 1992. He flatly denied that
he had earlier testified as I have set forth. He did not testify that
the meeting was what he meant by his earlier testimony, he just de-
nied having so testified. Owens also testified he did not remember
tape and would like to listen to it. Rodriguez said he listened
to the tape, generally hearing what had been played earlier
during the course of the hearing. He said he asked Peck for
a copy, which he got on a regular cassette. He said he at-
tempted to play it at a trailer meeting with 7 to 10 employees
but that the quality was so poor no one could understand it.
Rodriguez also ‘‘used a copy’’ of the tape at a meeting
he held at the Holiday Inn about 2 weeks before the election,
and he and the 10 to 12 employees present discussed it at
that meeting. Later, assumedly prior to the election, he tried
to play the tape for employee Garcia. Garcia had brought
two unidentified employees to Rodriguez’ room at the Holi-
day Inn. Rodriguez invited employees to come hear the tape,
once he had secured a better tape recorder on which to play
the tape.
Representative Tucker acknowledged that he heard about
the tape recordings during the campaign and that the Mayes-
Peck recording was played for some employees during the
campaign by Rodriquez. He further testified that the tape was
discussed at a meeting he attended, albeit the tape was not
played. Employees asked about the existence of such a tape,
to which, according to Tucker, Petitioner’s representatives re-
sponded they had heard rumor of the existence of such tapes.
Peck had told Tucker that he had made tapes for his own
protection, and Tucker believes Peck had told him that Steve
Mayes’ voice was on the tape.
D. The Mark Holcomb Affair
The Employer claims that Holcomb, as an agent of the Pe-
titioner, incited employees to riot on January 29, 1992, by
injecting racial slurs into an employer-sponsored meeting.
Francois Gaulin was present at this meeting. According to
Gaulin, the Hispanic employees watched a videotape in
Spanish in one room and English-speaking employees
watched an English-language tape in another room. After the
videos were shown, both groups came together. East Rome
Plant Manager Thomas Owens and Corporate Director of
Human Resources Walter (Rusty) Raybun presided over a
question-and-answer session. After some unspecified ques-
tions by unspecified persons, Mark Halcomb, ‘‘out of the
blue,’’ walked forward to the stage and said he had a few
questions to ask. According to Gaulin, Holcomb jumped up
on the stage, pulled out a pad, and asked about a pay raise,
which question created some grumbling among the assembly.
Holcomb then asked, ‘‘What about this tape?’’ To the return
question ‘‘what tape?’’ Holcomb allegedly said, ‘‘Tommy
[Owens], the tape that you said about the Mexicans living
like animals and sleeping like dogs on the floor and eating
like pigs.’’ According to Gaulin, at that point ‘‘everybody’’
got up, approached the stage, and ‘‘chairs were flying.’’
Owens said that he had never said anything like he was ac-
cused of saying, whereupon Holcomb allegedly turned to-
ward Gaulin and said no—‘‘You, Francois, was on this
tape.’’ Everyone then turned toward Gaulin and started to-
ward him. Raybun then asked Holcomb and all non-East
Rome employees to leave, so Gaulin left and walked back
to the plant. The following day, at a meeting assembled by
the Employer, Gaulin told the employees that he had never
made such a statement of which he stood accused and of-
fered $1000 for a copy of any tape.47
Antelmo Tello, one of the Employer’s production super-
visors, was translating at this question-and-answer session
along with a female translator who, curiously, no one seems
to know.48 Tello testified he translated what he understood
was being said, but that the unknown translator understood
English better. Tello testified that he did not translate all that
went on, only what he understood. If he did not understand
what was going on, Tello testified he did not translate at all.
He stated he translated only part of what Holcomb said with-
out telling what part he did translate.49 Tello was not ques-
tioned by the Employer, whose witness he was, about other
aspects of the meeting. Counsel stated his interest in calling
Tello was solely about postmeeting events.
Plant Manager Owens testified that the meeting was held
of all East Rome first-shift employees, originally divided into
two rooms. The employees reassembled for a question an an-
swer period. A few unnamed people asked questions which
were answered. Holcomb then got up, fumbled, through his
pad, and asked a question about pay. Following this, some
other employees asked questions before Holcomb stated he
was not through with (with his questions) yet. Holcomb then
asked a question Owens does not recall, followed by ‘‘what
about this recording of you saying that the Hispanic people
live like animals so you might as well treat them like ani-
mals?’’ Owens states that employees jumped up, with chairs
clattering, and came toward the stage. Owens called Hol-
comb a liar, whereupon Holcomb said, ‘‘Don’t you remem-
ber you said that Hispanics live like animals and you should
treat them that way.’’ Owens says he denied this. Holcomb
then said he did not mean it was Owens that made the state-
ment, but Gaulin. According to Owens, after Holcomb and
Gaulin left, he assured the employees he had never made
such a statement. The next day a meeting was held with as-
sembled employees in which Gaulin denied the statement at-
tributed to him.50
505ZARTIC, INC.
whether the film shown to employees on January 29, 1992, men-
tioned the Cedartown strike or violence attendant thereto. I find this
loss of memory to limit my belief in the accuracy of other testimony
he gave.
51 Supervisor Melton was not called a a witness, and Owens was
not asked, on this record, whether he had had such a conversation
with Melton. 52 No such petition was introduced at the hearing.
Raybun testified that the majority of the employees at the
meeting were Hispanic, the vast majority of whom are recent
immigrants who do not speak English. He stated there were
only about 10–12 English-speaking people in the room where
the English version of the video was played. Raybun testified
that, after several employees from the reassembled group
raised questions, Holcomb approached the stage and said he
had some questions. Holcomb came up on the platform and
pulled from his pocket a notebook and asked his questions.
After his question about pay raise and other questions from
the floor, Holcomb shouted out he had more questions. He
then asked, ‘‘What about this tape that Tommy Owens says
that Hispanics live like animals and should be treated like
animals’’ or ‘‘something to that effect.’’ According to
Raybun, several employees got up asking each other what
had been said. Owens was calling Holcomb a liar, and Hol-
comb, according to Raybun, repeated his accusations against
Owens several times. Finally Holcomb said that Gaulin had
uttered the words, and the crowd’s attention shifted to
Gaulin. Raybun then asked Holcomb to leave the meeting.
Mark Holcomb was presented by the Petitioner as a wit-
ness, and he testified as to his actions at the January 29,
1992 meeting. According to Holcomb, he borrowed a note-
book from a fellow employee to write down questions he
wanted to ask. When he got the floor, he asked questions
about a pay raise and other problems. He then asked why it
was that certain people in management were allowed to say
that people lived like animals and should be treated like ani-
mals. Raybun got upset when this question was asked, and
Owens called Holcomb a liar. Holcomb replied that he had
heard Owens make that statement saying that, in a shop con-
versation, Owens had said that Gaulin had made the state-
ment and that there was a tape of it. Owens and Raybun
started telling Holcomb to leave. He left.
According to Holcomb, Owens had earlier, in the plant’s
maintenance shop, told Supervisor Jo Melton, ‘‘do you know
what Francois just told us? He said, Francois told us that
these people live like animals and they should be treated like
animals.’’51 Holcomb took it that ‘‘he was ‘insinuating’
Mexican people.’’ Holcomb had also heard the rumor about
a tape that Chad Peck had before he raised this matter at the
meeting. The next day, according to Holcomb, Owens came
up to him and asked if he knew how bad Holcomb had hurt
‘‘us’’ yesterday. Holcomb told Owens he was just tired of
hearing lies from the company and false statements from
management.
E. The Facts About Agency
The Employer contends that Peck and Holcomb engaged
in the acts described above as agents of the Petitioner with
the concomitant responsibilities thereupon. The Employer re-
lies on the testimony of the Petitioner’s representatives, Peck,
Holcomb, and Supervisor Tello. Thus, I will approach the
facts in a different manner than earlier, wherein I related first
the Employer’s evidence, because the story will unfold with
greater ease that way.
Garney Browning testified that the Petitioner was receiv-
ing calls from employees of the Employer regarding interest
in union representation. Small meetings were set up with em-
ployees in early September 1991, to sample interest. When
such small meetings proved fruitful, a larger meeting was
staged in the latter part of September or early October 1991,
at which 110 to 130 employees were in attendance. It was
determined that a campaign was viable and weekly meetings
and the distribution of leaflets began. Apparently Tucker was
there early in the campaign. Later Eddie Felan and Rudy
Rodriguez, bilingual representatives, were sent in to help the
campaign under the direction of Browning.
The campaign existed basically of house calls by these
representatives, accompanied by employees on occasion,
mass meetings at the IUE hall in Rome, smaller meetings at
the Holiday Inn at which Rodriguez came to reside as the
election drew near, and the distribution of leaflets at the two
plants. Employees also got signatures on a petition used by
the Petitioner in lieu of traditional authorization cards.
Chad Peck admittedly was active in the campaign, getting,
according to Peck, about 50 employees to sign the petition
for union representation. As noted earlier, he helped with
handbilling subsequent to his discharge on December 3,
1991. Around the middle of November 1991, Peck, along
with other employees, signed a document which stated, ‘‘I
hereby pledge to be a member of the organizing committee
and pledge to represent my department at special called
meetings for the purpose of organization.’’ According to
Tucker, the purpose of this committee was for its members
to attend the meetings and carry back information to employ-
ees, encouraging them to come to the meetings. After the
discharge of Peck the Petitioner did pay him $50 per week
for his personal expenses. Peck states he, in turn, gave the
Petitioner gas receipts, lunch receipts, and receipts for other
organizing expenses.
Mark Holcomb, despite his testifying, remains an enigma.
He testified first that he had no involvement with the Peti-
tioner prior to the January 29, 1992 incident at the Holiday
Inn. He testified that he had attended no meetings up to that
time and treated both the Union and the Employer’s handouts
as ‘‘garbage.’’ On cross-examination, it was revealed that he
‘‘may’’ have gone to the first union meeting, and that, in De-
cember 1991, he had signed a petition in support of the Peti-
tioner.52
According to Tucker, Holcomb appeared to have some
early interest in the Petitioner and attended early meetings,
but thereafter withdrew from participation. Garney Browning
testified that, sometime after an election date was set pursu-
ant to the Decision and Direction of Election, which issued
January 8, 1992, he received a telephone call from Holcomb.
Holcomb asked a lot of questions of Browning about issues
of the campaign, which Browning undertook to answer.
Browning asked Holcomb to start coming to the union meet-
ings, but Holcomb refused, averring the recent birth of a
baby and a fear of losing his job. The Employer’s ‘‘smoking
gun’’ evidence of Holcomb’s agency status was the reason
it called Antelmo Tello to the stand. According to Tello, as
he departed the Holiday Inn after the January 29, 1992 meet-
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
53 See M. J. Santulli Mail Service, 281 NLRB 1288 fn. 1 (1986).
54 See, e.g., United States of America v. Joseph Krause, 507 F.2d
113 (5th Cir. 1975); Air LaCarte Florida, Inc., 212 NLRB 764
(1974).
ing, he saw Mark Holcomb in Chad Peck’s car with Eddie
Felan outside the motel. The Employer also relies on a post-
election selection of Holcomb as a member of the Petition-
er’s steering committee. The Employer, in effect, argues that
Holcomb had to be a union agent to do what he did at the
Employer’s meeting, surfacing only then and after as the ac-
tivist he was.
Holcomb testified that, on being ordered out of the meet-
ing, he left the motel, got his car at the plant, and drove to
his nearby home. When he got home, he called Chad Peck
to tell him what had happened at the meeting. He asked Peck
about the existence of the tape recording about which he had
heard because he had brought the matter up in the meeting.
Peck went to Holcomb’s apartment, and drove him, in Peck’s
car, to see Eddie Felan. There is no dispute that the three
were together in Peck’s car at the Holiday Inn shortly there-
after. It is also not in dispute that Holcomb was elected to
the Petitioner’s steering committee after the election.
Throughout the hearing the name of Sabarino ‘‘Pops’’
Garcia came out, albeit the spelling of his first name varied
throughout, apparently the Employer seeking to tie him in to
some misdeeds on behalf of the Petitioner. However, neither
party really pursued his status on the record. He was an em-
ployee, he attended union meetings, he brought employees to
see Rudy Rodriguez, and he allegedly stood outside the East
Rome plant gate waving a cassette after the January 29, 1992
meeting, telling the Employer that this was proof that he had
that Gaulin was saying bad things about the Mexicans. The
Employer avers he served as the Petitioner’s observer at the
election.
According to the Petitioner’s evidence Garcia did attend
some meetings did bring some employees to see Rodriguez.
However, it was also testified that Garcia was seen outside
the East Rome plant the night before the election holding a
‘‘vote no’’ sign. Further, according to the Petitioner’s wit-
nesses, Garcia served as the Employer’s observer. No one
really explored these discrepancies, Garcia did not testify,
and no further evidence was proffered concerning his ob-
server status by people who may have seen him on election
day.
F. Who is Stephen Mayes?
As the reader hereof and of the record will take note, Ste-
phen (Steve) Mayes is the other voice on the infamous Peck
recording. According to Peck, Mayes was his supervisor be-
cause he was a ‘‘red hatter,’’ supervisors apparently wearing
red hats at the plant to denote their status. According to
Peck, Mayes worked for 2 weeks on the first shift. There-
after, Peck was told by Supervisor Gary Murphy and Mayes
at a shift change that Mayes would be going to the second
shift, on which Peck worked, and would be ‘‘in charge’’ of
the second shift. Neither Mayes nor Murphy was called to
testify. According to Raybun, Mayes went to the second shift
as a ‘‘supervisor trainee,’’ and, ‘‘at some point time’’ he be-
came a supervisor. According to Raybun, Mayes had the au-
thority to direct the work of employees and such employees
were required to follow his instructions. When a line of
questions began on the difference in a ‘‘supervisor trainee’s’’
authority and that of line leaders, a nonsupervisory position,
Raybun asked that the counsel ‘‘quit splitting hairs.’’ He said
that the Employer’s ‘‘supervisory structure’’ involved the
plant manager, production manager, supervisors, and super-
visor trainees.
Mayes’ own words on the taped conversation with Peck
are instructive since Mayes was not on notice his status as
an employer spokesman would later be put in question. He
discussed the fact that he had given reprimands to four em-
ployees who had then filed racial discrimination charges
against him over the reprimands. He alluded to his authority
to let employees go home by telling Peck that, if the Peti-
tioner were successfull in its campaign, he would lose his au-
thority to do so. Peck testified further that he had seen
Mayes send employees home.
The Employer’s counsel was a model of inconsistency on
this issue. He states early on the record that he ‘‘believes’’
Mayes was a supervisor ‘‘at that time.’’ Later, notwithstand-
ing his representation of this Employer over this long period
of time, he stated he was lacking sufficient information on
Mayes’ 2(11) status. Since the Employer placed before me
the consolidated complaint in Cases 10–CA–25786 and 10–
CA–25909 issued May 29, 1993, I have taken administrative
notice of the answer filed by counsel to that consolidated
complaint. In paragraph 6 of the complaint, it is alleged that
‘‘at all times material herein’’ Steve Mayes occupied the po-
sition of supervisor, and was supervisor and agent of the Em-
ployer. (Respondent in the complaint.) The complaint alleges
wrongdoing on various dates between November 8, 1991,
and March 31, 1992, with Mayes’ alleged transgression
being on about November 26, 1991. Paragraph 6 of counsel’s
answer states, inter alia, that ‘‘Z-Bird admits that at material
times, the following named individuals were employed at Z-
Bird as follows: . . . Stephen Mayes, Supervisor.’’ I note the
lack of the word ‘‘trainee’’ in this admission. I notice fur-
ther, to give credit or discredit to counsel’s ingenuity, the an-
swer filed by counsel to the complaint in Case 10–CA–
25786 wherein he admitted that ‘‘Steve May [sic], Super-
visor’’ occupied that position ‘‘at certain time’’ and that
‘‘during such times, Mayes was a supervisor within the
meaning of Section 2(11) of the Act.’’ To continue in this
mode of discovery, I notice the answer filed by counsel to
the amended consolidated complaint in Cases 10–CA–25786,
10–CA–25909, and 10–CA–26161, wherein the language
changes yet again to admit that, ‘‘at certain times,’’ ‘‘Ste-
phen Mayes, Supervisor’’ was employed ‘‘as follows.’’
Section 102.21 of the Board’s Rules and Regulations states
that the signature of an attorney on an answer constitutes a
certificate by him that he has read the answer and that, to
the best of his knowledge and belief, there is good ground
to support it and is not interposed for delay.53 In common
translation, one would see this to be an affirmation that an
attorney’s signature has some effect on the credibility of the
answer, even though unsworn, since such would become part
of the record were a hearing held and encompass material
facts upon which an ultimate decision could be influenced.54
Conceding that the continual issuance of seriatim complaints
and concomitant answers thereto may have the effect of re-
voking prior answers, I find logic in the pronouncement of
the Seventh Circuit Court of Appeals in Contractor Utility
507ZARTIC, INC.
55 638 F.2d 1061, 1084 (7th Cir. 1981).
56 Contrary to the Employer’s assertions in brief that Holcomb
called Browning during the campaign to ‘‘express his interest in
unionization’’ (Tr. 284), the record reveals Holcomb called concern-
ing questions he had about the campaign.
57 As noted earlier, I deign to find anything about the status of
‘‘Pops’’ Garcia because of the evidence before me. To the extent the
burden falls on the objecting party, I find the Employer failed to
prove Garcia to be an agent of the Petitioner. The same is true about
the various other names brought up without connection during the
course of the hearing.
58 I lend no credence to the implied argument that the Petitioner’s
use of bilingual representatives and bilingual handbills somehow ap-
peals to racial prejudice, nor do I find it sinister that the Petitioner
invited Hispanic and/or bilingual speakers to address the employees.
Even the Employer showed videotapes separately to employees
based upon their abilities to comprehend English.
59 The Employer points solely to P. Exh. 22, admittedly handed
out 1 to 2 days before the election wherein the term ‘‘treat like hu-
mans’’ appears. No racial or ethnic considerations appear on this
handbill, although an earlier handbill discusses employee treatment
whether native or immigrant. R. Exh. 3L.
60 Indeed, the Employer presented evidence that the Klan and its
allies sought the discharge of Hispanic employees at Cedartown
some of whom now work at Rome and/or have relatives that do. It
can not really be argued that use of the Klan would reasonably tend
to cause Hispanics to support the Klan’s ‘‘ally,’’ the Petitioner here-
in.
Sales v. Certain-Teed Products Corp.,55 that an amended an-
swer filed subsequent to a change of counsel, which denied
facts admitted in an original counsel’s answer, did not re-
move the original answer from consideration. Although the
original answer ceased to be a ‘‘conclusive judicial admis-
sion,’’ it ‘‘still remains as a statement once seriously made
by an authorized agent, and, such, it is competent evidence
of the facts stated, though controvertible, like any other
extra-judicial admission made by a party or his agent.’’ This
should apply moreso where the answers are all filed by the
same counsel.
IV. FINDINGS
A. Agency
The evidence presented by the Employer falls short of es-
tablishing either Chad Peck or Mark Holcomb to be agents
of the Petitioner. Peck’s position and activities vis-a-vis the
Petitioner constitute a closer case, but the Employer through-
out has emphasized the heavy involvement in the campaign
of Browning, Tucker, Rodriguez, and Felan. The Petitioner
had a strong, regular, and continued presence during the en-
tire campaign, and the employees had the benefit of this
presence to learn therefrom the Petitioner’s policies, prac-
tices, goals, and position on the various issues. This negates
the possible manifestation of Peck as the Petitioner’s agent
on issues of concern to employees, notwithstanding his
handbilling, his steering committee membership, and his sig-
nature solicitations. Accordingly, on this record I find Peck
not to be an agent.
The question of Holcomb and his activities remains a mys-
tery. I do not know why he stood up at the January 29, 1992
meeting and addressed racial or ethnic matters. I do know
that the Employer has failed to establish him to be the Peti-
tioner’s agent at this time. Questions in brief about his pos-
sible (probable) motives do not substitute for proof.56 I do
not find that his seeking out Chad Peck who thence led him
to the company of a union representative constitutes evidence
that the Petitioner, by seemingly giving comfort to a worried
employee, thereby ratified his prior actions at the meeting.
Indeed, there is no evidence that Felan, at the time, even
knew what had transpired at the meeting.
B. Stephen Mayes
I find that when Mayes, at the time he spoke on tape with
Chad Peck, was an individual who, if not a supervisor, had
been placed in a position by the Employer that employees,
like Peck, could assume that he had both the ear and voice
of management. Thus, when he discussed the conversation he
said he had had with Gau]in, it was as a spokesman for the
Employer whether as supervisor or agent.
C. The Racial (Ethnic) Appeals
1. The Petitioner’s activities
I have found, above, that neither Peck nor Holcomb was
an agent of the Petitioner, and, thus, I find that whatever
their activities were in regard to the racial (ethnic) allega-
tions, the Petitioner was not responsible therefor.57 In accord
with this finding, I will reserve discourse on the effects, if
any, of Holcomb’s activities on the election to subparagraph
(2) following. In analyzing the Petitioner’s use of Employer’s
Exhibits 1 and 2 and in its handling of the Peck tape record-
ing, I look back to the prevalent words, cited in the earlier
analysis of legal precedent.58 I find, especially from a read-
ing of the Petitioner’s handbills introduced both by the Em-
ployer and the Petitioner, that race or ethnic prejudice was
not the focal point of the Petitioner’s campaign.59
Based upon the applicable precedent, I find that the Peti-
tioner has not been shown to have engaged in a deliberate,
sustained, calculated campaign to appeal to racial (ethnic)
hostilities, prejudices, or animosities. I find the use by the
Petitioner of Employer’s Exhibits 1 and 2 to be stupid and
lacking in taste, but, based upon the campaign as a whole,
I do not find a deliberate attempt to overstress, exacerbate,
or inflame passion to be the intent of these documents. The
videotape about Cedartown to which the Petitioner in part re-
sponded, could easily be seen and heard, especially by the
unsophisticated ear, to relate to the Petitioner. While it be-
gins with discussion about ‘‘a’’ union, the bulk of reference
in the tape is to ‘‘the’’ Union. The use of ‘‘the’’ is especially
pronounced when the employees on the tape begin discussing
their expressed view of the downside of union representation.
Further, contrary to the memory expressed by Plant Manager
Owens, it is clear on the video that violence during the
Cedartown strike is discussed. Thus, for the Petitioner to ad-
dress the fact that the Klan began the strike, joined by other
employees, to show the Petitioner was not involved is not
beyond the realm of credibility.60 Likewise, the use of Em-
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 Although Owens testified he told the employees on January 29,
1992, he had made no such statements, he was not asked on this
record whether he had, in fact, done so. Supervisor Melton was not
called as a witness at all.
62 The Employer tried its best to shield Gaulin from scrutiny.
Thus, it argued to the Board in its request for review that Gaulin
was at the corporate headquarters ‘‘physically separated from the eli-
gible voters,’’ apparently hinting that a racist statement by him could
not be a legitimate campaign issue. What the Employer hid from the
Board was that Gaulin had been assigned to the East Rome plant
to assist Plant Manager Owens during the campaign. In its brief
posthearing, the Employer argued that Gaulin spent his time in an
office, whereas even Gaulin testified he spent ‘‘most’’ (not all) of
his time in the office. What is further left unsaid is that Gaulin was
at the January 29, 1992 meeting; had attended other meetings with
employees regarding the union campaign; and had participated in
meetings of management in which corporate strategy was discussed
whereby the Employer hoped to defeat the Petitioner. Gaulin was not
the ‘‘far removed company executive’’ of which the Board was ap-
prised in the Employer’s request for review. Indeed, he had earlier
been plant manager at East Rome and known to employees.
63 In its request for review on the denial of its objections, the Em-
ployer sarcastically blasted the Regional Director for not relying on
its one witness to the Holcomb event to set these matters for hear-
ing. As counsel argued, more than 100 employees witnessed the Jan-
uary 29, 1992 event, and the Employer ‘‘could have provided count-
less affidavits reiterating every detail.’’ At the hearing, the Employer
produced none of these employee witnesses to this event. Perhaps
one could surmise their recollections of the meeting were adverse to
the story the Employer sought to have believed.
64 As provided in the Board’s Decision and Order Remanding Pro-
ceeding for Hearing, either party may, within 14 days from the
issuance of this report, file with the Board eight copies of excep-
tions. Immediately upon filing exceptions, the party filing then shall
serve a copy on the other party and shall also file a copy with the
Regional Director. If no exceptions are filed, the Board will adopt
the recommendation of the report.
ployer’s Exhibit 2 is perhaps tasteless but I fail to find a link
between it and the campaign. To whom would such appeal?
Absent an answer to that question, I find it nonobjectionable.
Finally, I look to see whether the Petitioner’s use of the
Peck/Mayes tape violated the concepts of Sewell and any of
its progeny discussed supra. The iterated conversations by
Mayes allegedly quoting Gaulin involving employees living
like animals and being treated like animals were volunteered
hy Stephen Mayes in an otherwise unrelated discussion. Why
all who testify that they heard the tape seem to think it refers
on the audible tape to Hispanic or Mexican employees es-
caped my hearing and apparently that of the court reporter.
According to the Employer, in its request for review con-
cerning the dismissal of its objections, the Petitioner injected
racial prejudice by ‘‘repeatedly trying to convince employer
that certain company managers and executives were racial
bigots who were prejudiced against Hispanic employees.’’
Unfortunately for this point of view, it was Mayes who al-
legedly quoted Gaulin, not any representative of the Peti-
tioner. Although the Petitioner played the tape for employees
and discussed the tape, the Employer has not established its
own argument that race was the centerpiece of the Petition-
er’s campaign. Even its own witnesses did not so testify, and
according to their testimony, the playing or discussion of the
tape at various meetings or gatherings was low key and hard-
ly the main topic of the meeting. Further, the Employer pre-
sented evidence that Gaulin denied saying what he was ac-
cused of to all assembled employees.
Accordingly, I find that the Employer has not proven its
allegation with regard to the Petitioner carrying on a cam-
paign of racial bigotry and prejudice warranting setting aside
the election.
2. Third party conduct and/or general atmosphere
The Employer did not specifically plead this allegation in
its Objection 1, but has argued for a finding that, even if it
failed to prove that the Petitioner was responsible for inject-
ing racial bigotry into the campaign, the overall cumulative
effect of Employer Exhibits 1 and 2 along with the actions
of Peck and Holcomb created a general atmosphere of racial
hostility which corrupted the election processes. I find, to the
contrary, that, to the extent that prejudice and bigotry became
a part of the campaign, it was basically caused by the Em-
ployer. As stated above, it was Mayes, not the Petitioner,
whose voice on the tape led people to believe Gaulin was
prejudiced. Also, in the absence of record denials by Owens
and Melton, it was Owens who allegedly quoted Gaulin in
the presence of Holcomb.61 Thus, to accuse the Petitioner of
insensitivity in citing what appears to be the feelings of cer-
tain supervisors and managers toward certain groups of em-
ployees reflects an attempt by the Employer to capitalize on
its own words which have come back to haunt it.62 While
these types of quotes dealing with a substantial portion of the
Employer’s workforce are distasteful, distressing, and to be
condemned, it can not be said that the Petitioner thereby in-
troduced this subject in a manner requiring the election be
set aside.63
RECOMMENDATIONS64
It is recommended that the Employer’s Objection 1 be
overruled in its entirety. It is further recommended that the
Certification of Representative heretofore issued, but stayed
by the Board’s Order of December 3, 1992, be reinstated.