Norwestern Products, Inc.

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