KI (USA) Corp.

1063 309 NLRB No. 169 KI (USA) CORP. 1 The Employer has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 Regarding the hearing officer’s comments on remarks about the Japanese occurring in discussions solely between unit employees, we agree with his finding that such remarks were not frequent or exten- sive and that some of them predated the Unions’s petition. We also agree with his conclusion that they are not grounds for setting aside the election, even assuming arguendo that the Sewell Mfg. line of cases extends to third party conduct standing alone. We therefore find it unnecessary to pass on what the hearing officer finds ‘‘indi- cated’’ in the latter regard by Brightview Care Center, 292 NLRB 352 (1989). KI (USA) Corporation and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, Peti- tioner. Case 9–RC–15842 December 16, 1992 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH The National Labor Relations Board has considered objections to an election held March 22, 1991, and the attached hearing officer’s report (pertinent portions are attached) recommending disposition of them. The elec- tion was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 19 for, and 16 against, the Petitioner. The Board has reviewed the record in light of the exceptions1 and briefs and adopts the hearing officer’s findings and recommendations, and finds that a certifi- cation of representative should be issued. We adopt the hearing officer’s recommendation that Employer’s Objection 3 be overruled. The issue in this case is whether the petitioning Union interfered with the election by, on the eve of the election, circulating a copy of a letter published by a Japanese businessman that made assertions that concededly contain elements of prejudice and bias against American workers. Con- sistent with the rationale expressed by the hearing offi- cer, we find that the Union’s circulation of this letter does not constitute the kind of gratuitous campaign ap- peal to prejudice proscribed in Sewell Mfg. Co., 138 NLRB 66 (1962). The Employer in this proceeding is a subsidiary of a Japanese corporation which adheres to certain man- agement programs originating in Japan, and in fact provides training for its local managers in that country. The Employer employs both Japanese nationals and Americans in its management ranks, with Japanese na- tionals predominating in the higher ranks of manage- ment. At the Berea, Kentucky manufacturing facility, which is the site of the present election proceeding, on-site management is composed mainly of Americans. Their assigned management role is to use a blend of American and Japanese management concepts. This has resulted in a setting in which, prior to the initiation of the Union’s organizational campaign, employees ex- pressed concerns as to the extent to which the Employ- er’s Japanese owners and managers appreciated the American employees and the American managers. Al- though employees expressed among themselves such thoughts during the election campaign, there is no evi- dence that the Union contributed to these remarks. Fur- ther, there is no contention that the employees’ state- ments are themselves a separate basis for setting aside the election.2 The day prior to the election, the Union held a meeting attended by four employees and two union representatives. At the end of the meeting one of the union representatives made available to the employees various printed material, including the letter in ques- tion. In its entirety, the Union’s distribution stated: You Should Know Voice From Japan In regard to your article ‘‘Bubba’s 5th Annual Honda Drop’’ in the October issue, if you want to destroy Japanese products, you should start with your Harley-Davidson motorcycles. I re- cently toured a Harley-Davidson dealership and was given the opportunity to examine the 1991 models and the ‘‘genuine’’ parts. I saw more made-in-Japan, -Korea, and -Taiwan labels than you could even find in a Japanese company. Per- haps that is why Harley-Davidsons are finally being praised as quality products—because of the excellent Japanese parts on them. As a Japanese businessman and investor, I am appalled at the typical lazy, uneducated American worker I have had to deal with in your country. The Japanese work force and management philos- ophy is proven superior, and your half-witted American managers are constantly studying our techniques. In America it is your political leaders who are doing you the most harm, not the Japa- nese. The fact that Americans believe in such false patriotism and political lies shows how igno- rant and weak you have become. I suggest the Americans start developing a healthy respect for Japan because one of my col- leagues will eventually become your boss and/or own your company. In Japan we have a very rich tradition and long history of patience, but we will not show patience with your disrespect and racism towards our proud and growing empire. Toshito Nakamura Osaka, Japan 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 The letter in fact appeared as a letter to the editor in the January 1991 issue of Easy Rider magazine, which the hearing officer found was a publication directed to Harley-Davidson owners and operators. 4 Our colleague misconstrues Sewell in contending that a party’s intent in this regard is an irrelevant factor. 5 We do not infer, as does our dissenting colleague, that the ab- sence of such clarification makes the letter ‘‘untruthful.’’ The content of the letter clearly indicated that it was written in response to an article in a monthly publica- tion.3 The Union’s sole addition to the letter was add- ing the ‘‘You Should Know’’ banner, and underlining some of the text of the letter. The Union did not refer to the letter in its campaign, and the record does not expressly reveal the Union’s intent in distributing this material. It does show, however, that the letter was re- produced and widely disseminated among the unit em- ployees during the remaining time before the election the next day. It is undisputed that the Employer had no connec- tion with the writer of the letter, nor is there any con- tention that the Employer in any way expressly en- dorsed or made statements paralleling the thrust of the letter. In Sewell Mfg. Co., supra, the Board held that it would set aside elections when a party engages in a campaign which seeks to overstress and exacerbate ra- cial feeling by irrelevant, inflammatory appeals. 138 NLRB at 72. The Board in Sewell distinguished such conduct from isolated, casual, prejudicial remarks, and also stated that it did not seek to condemn relevant campaign statements merely because they may have ra- cial overtones. In rendering a judgment on this alleged objection- able conduct, the most formidable task we face is as- sessing the intent of the Union in distributing this let- ter—in the words of Sewell, what the party ‘‘seeks’’— as well as trying to gauge its likely effect on the unit employees in question.4 In particular, we note that the Union never provided any commentary to employees on how this letter, written by a ‘‘Japanese businessman and investor,’’ related to the Employer’s attitudes to- wards its employees.5 Accordingly, as noted, the exact intent of the Union in distributing this material is un- clear. However, the context was that the employees were concerned about the impact of the attitudes of the Japanese owners on their workplace. Thus, a depiction of one such example by another Japanese businessman appears to be an attempt at least to pose the question of whether there is some connection between the two. It does not automatically follow, however, that this communication is inherently objectionable. Although such claims raise the specter that some voters may overreact and respond in an equally prejudicial man- ner, and that awareness of this potential may fairly be imputed to those who would raise such issues, the Board has not equated the broaching of such topics to opening a Pandora’s box. The Board has held, with court approval, that even specific claims that the other 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. See, e.g., Coca- Cola Bottling Co., 232 NLRB 717 (1977); State Bank of India v. NLRB, 808 F.2d 526, 541–542 (7th Cir. 1986); and Peerless of America v. NLRB, 575 F.2d 119, 125 (7th Cir. 1978). We note in particular, the court’s statement in State Bank of India, that the union’s claim that the employer was taking advantage of employees because of their national origin or minor- ity group status was not an appeal to racial prejudice, but was merely urging the employees to vote for the union to prevent discrimination. Similarly, in Beatrice Grocery Products, 287 NLRB 302 (1987), the Board found that it was not objectionable for the union rep- resentative to make a statement representing that the employer’s general manager had derisively referred to employees with a racial pejorative, even where the record did not resolve whether the particular comment had been expressed. The Board found that the state- ment represented an effort to denounce perceived racial prejudice in the other party to the election, rather than to incite correlative prejudice against a particular racial or religious group. Id. at 303. The Board, however, de- finitively set out the limits to be observed in broaching such sensitive campaign topics: We do not condone the use of racial or ethnic epi- thets such as that at issue here. Had a union rep- resentative used such a term in comments attack- ing a particular racial, ethnic, or religious group, or made racial, ethnic, or religious references as part of an inflammatory campaign theme, or had the representative brought up references to racial, ethnic, or religious groups in a totally gratuitous way, unconnected to any employee concerns, we would not hesitate to set aside the election. Under the circumstances here, however, we cannot con- clude that this single incident ‘‘so lowered’’ prop- er election standards ‘‘that the uninhibited desires of the employees could not be determined in the election.’’ Sewell Mfg. Co., supra, 138 NLRB at 72. Id. at 303. In setting these limits, the Board has acted consistently with its own precedent in which it had set aside an election where a union made racially and na- tionally pejorative statements directed toward Japanese owned and operated facilities in this country. See YKK (U.S.A.) Inc., 269 NLRB 82 (1984). That case is clear- ly distinguishable from the instant one in that, there, the union made a series of intemperate racial state- ments which had no direct bearing on campaign issues, and served only to exacerbate feelings of hostility on 1065 KI (USA) CORP. 6 We also find this case distinguishable from M & M Supermarkets v. NLRB, 818 F.2d 1567 (1987), in which the court denied enforce- ment of a Board order on the basis that statements made during the election campaign, although not attributable to the union, were so in- flammatory and derogatory that they inflamed racial and religious tensions against the owners of the employer and were thus objection- able. 1 Sewell Mfg. Co., 138 NLRB 66 (1962). 2 Id. at 71–72. 3 Id. at 71. issues which were not germane to proper workplace issues.6 Although we may question whether the Union’s dis- tribution of this letter was a meaningful contribution to its organizing campaign, our task in this case is solely to determine whether this conduct so clouded the elec- tion atmosphere as to require the election to be set aside. Applying the limits set forth above in Beatrice, we find that the Union at no time interjected racial, ethnic, or religious epithets against any group. Further, the distribution of the letter fell far short of injecting an inflammatory campaign theme. Clearly, the employ- ees’ expressed apprehensions regarding how they were perceived by the Employer predated the organizing campaign. There is no dispute that the republication of the letter was truthful, to the extent that the Union did not alter the text of the letter from that contained in the original, and the Union made no direct claim that these sentiments were necessarily shared by the Em- ployer. Finally, we observe that the ethnic references were directly keyed to perceived workplace attitudes. Notwithstanding any racial overtones, the topic of how American workers were regarded by management was a relevant campaign issue, not a gratuitous comment. In sum, we find no clear evidence that the Union in- tended to generate a general racially based hostility against Japanese nationals; and, in our view, the em- ployees remained able to judge for themselves whether the statements in the Nakamura letter might resemble views of American workers held by the Employer and, if so, how they should view their Employer. Accord- ingly, although we sympathize with our dissenting col- league’s desire to eradicate all offensive publications or statements in elections, we do not agree that the publication of the letter under the circumstances here amounted to the kind of inflammatory appeal con- demned by Sewell Mfg. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for International Union, United Auto- mobile, Aerospace & Agricultural Implement Workers of America, UAW and that it is the exclusive collec- tive-bargaining representative of the employees in the following unit: All full-time and regular part-time production and maintenance employees employed by the Em- ployer at its 501 Mayde Road, Berea, Kentucky location, including shipping and receiving and quality assurance employees, but excluding all of- fice clerical employees and all professional em- ployees, guards and supervisors as defined in the Act. MEMBER RAUDABAUGH, dissenting. In brief, the evidence establishes that the Employer is a Japanese-owned company. Unit employees be- lieved that Japanese employers held negative attitudes regarding American workers. They were concerned that their Employer shared these views. The Petitioner sought to appeal to these beliefs and concerns by dis- tributing copies of an article written by a Japanese businessman, Toshita Nakamura. In that article, Nakamura said that American workers are lazy and uneducated. He also said that Americans are ignorant and weak. There is no evidence that Nakamura has any rela- tionship to the Employer. Nor is there any evidence that the Employer shares Nakamura’s views. I begin with the proposition that Nakamura’s views are deeply offensive. He lumps all American workers together, and proceeds to describe them in strident negative terms. Such negative stereotyping is patently obnoxious. However, the Petitioner’s responsive conduct was also offensive, ironically for the very same reasons. The Petitioner, by distributing the handbill to the em- ployees, sought to capitalize on their concern that all Japanese, including the Employer, held negative views of the American worker. Thus, the Petitioner sought to lump the Employer together with Nakamura, on the sole basis that they were both Japanese, and to ascribe to the Employer the pejorative views of Nakamura. In sum, the Petitioner sought to create the impression that all Japanese held prejudiced views of the American worker. This negative stereotyping of Japanese is as offensive as Nakamura’s negative stereotyping of American workers. Neither has a legitimate place in a representation election conducted by this Board.1 As Sewell makes plain, the parties have an obliga- tion to refrain from exacerbating ethnic tensions.2 In addition, a party must limit itself ‘‘to truthfully setting forth another party’s position on matters of racial inter- est.’’ (Emphasis in original.)3 In the instant case, the employees were concerned that their Employer held anti-American views. The Union’s distribution of the letter could only exacerbate that ethnic tension. In ad- dition, since there is no record evidence that the Em- ployer in fact held anti-American views, the Union was not truthfully setting forth the Employer’s position on these matters. 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Id. at 70. 5 Id. at 72. 6 Contrary to the suggestion of my colleagues, I do not seek to ‘‘eradicate all offensive publications or statements in elections.’’ I simply believe that the statements in this case clearly crossed the line demarked by Sewell. My colleagues assert that ‘‘the record does not ex- pressly reveal the Union’s intent in distributing this material’’ and that ‘‘the exact intent of the Union’’ is unclear. My colleagues therefore conclude that ‘‘we find no clear evidence that the Union intended to gen- erate a general racially based hostility against Japanese nationals.’’ My colleagues have erred by making intention a key factor. In general, intention or motive is not a nec- essary element in an objections case. The issue is whether the election was conducted ‘‘in an atmosphere conducive to the sober and informed exercise of the franchise.’’4 ‘‘Where for any reason the standard falls too low the Board will set aside the election and direct a new one.’’5 Further, even if proof of intention were required, it need not be shown with the exactitude and clarity re- quired by my colleagues. Even in an 8(a)(3) case, where proof of motive is required, a simple preponder- ance of the evidence will suffice. Certainly, in an ob- jections case, a higher standard should not be required. Indeed, in objections cases like the instant one, the critical burden is not on the objecting party. The bur- den is on the other party, i.e., the one who distributes the ethnic message. The specific burden is to establish that the message was truthful and germane. Applying these standards to the instant case, the Union’s untruthful and exacerbating message upset the laboratory conditions. Further, even if intention were relevant, the evidence indicates that the Union wished to create the impression, in the minds of the employ- ees, that the Employer, being Japanese, shared Nakamura’s biases. At the very least, it was reasonably foreseeable that unit employees would view the lit- erature in that light. My colleagues also seek to analogize this case to one in which one party to an election directly accuses the other party of racial or ethnic bias. As set forth above, the Union did more than that. The objectionable conduct was the suggestion that the Employer, simply by being Japanese, necessarily subscribed to the biased views of another Japanese person. In addition, as dis- cussed above, there is no record evidence that the Union was not ‘‘truthfully setting forth [the Employ- er’s] position on matters of racial interest.’’6 APPENDIX Hearing Officer’s Report The Employer’s Operation: The Employer, a wholly owned subsidiary of a Japanese corporation, is engaged, at Berea, Kentucky, in the produc- tion of component parts for the automobile industry. The Employer’s management staff is comprised of both Japanese nationals and Americans. It appears that the upper echelon positions in the Employer’s management are held primarily by Japanese nationals, whereas the on-site management is comprised primarily of Americans. In the operation of its Berea, Kentucky plant, the Em- ployer has utilized certain manufacturing equipment and techniques developed in Japan. In conjunction therewith, the Employer has caused a number of individuals to travel from Japan to the Employer’s Berea, Kentucky facility to share their technical expertise in such production methods. The Employer has also made arrangements for certain Americans to travel to Japan for training purposes. Additionally, in the operation of its Berea, Kentucky facility, the Employer has implemented a synthesis of Japanese and American manage- ment concepts. As the apparent result of the Japanese involvement in the operation of the Employer’s Berea plant, employees, from time-to-time, have questioned whether the American man- agers have effective control of the Employer’s plant and, in their informal discussions, questioned whether the Japanese people appreciate American workers and, in particular, black American workers. Employer’s Objection 3: The Employer’s Objection 3 alleges, in substance, that the Petitioner improperly and unlawfully engaged in a pattern of appeals to racial and national origin prejudice and issued false statements regarding the Employer’s position on such matters, inflaming the racial and national origin feelings of the employees. Findings of Fact and Conclusions: During their orientation the Employer’s employees were informed that the Employer was an international corporation that would seek to utilize the best of Japanese concepts and American concepts, discarding the rest. In fact, one position at the Employer’s facility is denominated Kaizen supervisor. The position is responsible for promoting the Kaizen pro- gram of production improvement through labor-management teamwork which originated in Japan and was further devel- oped in the United States. The interchange of Japanese and American techniques and concepts was further enhanced by Japanese employees brought to the Berea, Kentucky facility to lend their technical expertise and by programs to train American managers in Japan. As an apparent result of the Japanese influence, certain employees were heard to com- plain that the American managers had essentially a minor role and that the plant was run by the Japanese. The virtually undisputed facts in this matter establish that well before the advent of the Union’s organizing campaign, at least some employees were concerned that the Japanese members of the Employer’s management staff might not re- spect or fully appreciate the Employer’s American employ- ees. Thus, one of the Employer’s black employees, Theodore Jackson Jr., testified that approximately 1 year earlier, as the result of a newspaper article that another employee had brought to him, he and the employee had had some discus- sion about alleged Japanese failure to appreciate the black 1067 KI (USA) CORP. American workers. That matter remained a ‘‘private joke’’ between the two employees even at the time of the union campaign. During the course of the campaign, various employee union supporters commented, in the presence of other em- ployees, concerning negative opinions of American workers allegedly held by Japanese. Thus, one such employee, union advocate Paul Reed, was heard to comment on several occaions to the effect that the Japanese had a low opinion of American intelligence and workmanship and that the Company would be better when the Japanese left so that the Company would be run more like an American company. Another such prounion employee, Jerry Ferrell, was heard to comment that the Japanese had money to pay the employees, but were ‘‘screwing us over,’’ that the Japanese were making a profit. A general discussion of alleged Japanese belief that American workers, particularly black workers, were lazy, oc- curred at one of the Petitioner’s campaign meetings, con- ducted by the Petitioner’s International representative, Wil- liam Young. However, there is no record evidence of what, if anything, Young contributed to that discussion. On the day preceding the March 22 election, the Petitioner conducted a meeting attended by four employees and two of the Petitioner’s representatives, including William Young. At the conclusion of the meeting, Young made available to the employees various pieces of literature which he advised them to consider. Included was a copy of a letter to the editor of the January 1991 Easy Rider Magazine, a publication di- rected to Harley-Davidson Motorcycle owners and operators. The letter to the editor was written by a purported Japanese investor. The Petitioner had added the caption ‘‘YOU SHOULD KNOW’’ and reproduced the document for use in its campaign. (A copy of the document (the Nakamara letter) is attached hereto as Appendix A (omitted from publica- tion).) The document, as distributed by the Petitioner, had emphasis added as shown by the underscoring thereon. That document was reproduced and widely circulated among em- ployees at the Employer’s facility on the evening before the date of the election as well as on the day shift commencing at approximately 7 a.m., the day of the election. The import of the Nakamara letter was openly debated by employees and several employees commented, essentially questioning wheth- er that the document showed what the Japanese thought of them or thought of the American worker. When the subject document came to the attention of the Employer’s management, particularly the Employer’s man- ager of human resources, Harry David Billups, the Employer commenced an investigation into the matter and was shortly advised that the document was a copy of a letter to the editor of Easy Rider Magazine. The Employer was further advised that in a subsequent issue of the same publication, another letter to the editor by another Japanese businessman, had ad- monished the author of the subject document. The Employer obtained a copy of the rebuttal letter to the editor. (A copy of said letter (the Tsakikoto letter) is attached hereto as Ap- pendix B (omitted from publication).) The Employer then prepared a cover letter for distribution with the Tsakikoto let- ter. (A copy of the Employer’s cover letter is attched hereto as Appendix C (omitted from publication).) By 12:30 p.m. on the day of the election, the Employer had prepared four or five copies of the rebuttal document, the Tsakikoto letter (Appendix B) with the Employer’s cover letter (Appendix C) attached. Billups testified that he took those four or five copies and placed them on a table in the break area of the plant. Although some employees took their breaks in the cafeteria, and other areas of the plant, accord- ing to Billups, the Employer made no effort to place copies of its rebuttal in the cafeteria nor did it make any other at- tempts to distribute its rebuttal. However, the Employer’s su- pervisor, George Bonnet saw copies of the Employer’s rebut- tal in the cafeteria and the two primary break areas all before the election. The Employer asserts that because the lunch hour had passed and there was only a single 10-minute break until the commencement of the election at 3 p.m. that day, it felt it was out of time to make an effective response. The Board, with court approval, has long held that blatant appeals to racial prejudice invariably distract the voters from an objective and dispassionate consideration of the legitimate issues involved in a union organizational campaign and, therefore, have no place in the campaigns which precede Board-conducted elections. In the lead case, Sewell Mfg. Co., 138 NLRB 67 (1962), the Board set aside an election in which the employer had utilized a rank appeal to racial prej- udice which had no connection with any conceivable legiti- mate workplace issue. Therein, the Board established a standard by which to determine whether campaign rhetoric containing racially oriented argument would warrant setting aside an election, as follows: So long as a party limits itself to truthfully setting forth another party’s position on matters of racial interest and does not deliberately seek to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals, we shall not set aside an election on this ground. However, the burden will be on the party making use of a racial message to establish that it was truthful and germane and where there is doubt as to whether the total conduct of such party is within the described bounds, the doubt will be resolved against him. [Id. at 71–72.] In subsequent cases, the Board and the courts have utilized the above standard to set aside elections which involved out- right statements of racial or national origin hostility without any reference or nexus to legitimate employment concerns of the voters. See, e.g., YKK (U.S.A.), Inc., 269 NLRB 82 (1984); and NLRB v. Silverman’s Men’s Wear, 656 F.2d 53 (3d Cir. 1981). By way of contrast, the Board further defined the application of the Sewell test, indicating that certain types of racial or national origin rhetoric which has sufficient rel- evance to the legitimate campaign issues or employment con- cerns of the voters will not result in the setting aside of an election. Thus, in Coca-Bottling Co., 232 NLRB 717 (1977), the Board refused to set aside an election on the basis of a statement made by the employer’s supervisor to a black em- ployee, to the effect that if the union prevailed in the elec- tion, a certain employee would probably be made the shop steward and that such employee did not like blacks. In refus- ing to set aside the election based on such statement, the Board noted that the opinion expressed was made in a ‘‘tem- perate’’ fashion, did not rise to the level of ‘‘irrelevant, in- flammatory appeals to racial prejudice’’ and was a statement susceptible to evaluation by the eligible voters. Similarly, in State Bank of India v. NLRB, 808 F.2d 562 (7th Cir. 1986), the court, enforcing the Board’s bargaining order, agreed 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with the Board that statements made by the union during the underlying election campaign, to the effect that the employer had been attempting to depress working conditions and wages for employees because of their Indian nationality or other minority status, was legitimate campaign propaganda that did not rise to the level of racially inflammatory rhetoric intended to produce or exploit strong racial prejudice or like- ly to produce such racial prejudice. Moreover, the Board has found that where, as here, one party has raised a racial issue only in an attempt to denounce the alleged racism of the other, such factor tends to preclude a finding of a gratuitous appeal to racial prejudice found ob- jectionable in Sewell. See Beatrice Grocery Products, 287 NLRB 302 (1987). Based on the distinctions drawn by the Board in the var- ious cases involving campaign rhetoric with racial, religious, or national origin appeals or overtones, I have concluded that the national origin or racial content of the Petitioner’s cam- paign propaganda does not rise to the level of a sustained ap- peal to racial or national origin prejudice such as was con- demned by the Board in Sewell or subsequent cases. In so finding, I first note that the material was truthfully presented. The Nakamura letter was reproduced in its entirety, including the name of the author. Although the Petitioner underscored several phrases, it did not change the content of the letter, but merely emphasized certain points the Petitioner appar- ently wished to draw to the readers’ attention. The letter clearly and concisely indicated that it was a personal opinion of one Japanese businessman who, he claimed, shared a com- mon opinion of American workers with other Japanese busi- nessmen. The Petitioner left the employees to their own pow- ers of analysis and reason to conclude whether their Em- ployer would hold the same opinion, simply based on com- mon national origin. Secondly, the article was, in fact, ger- mane to the issues involved in the election campaign. Even before the campaign was initiated, the Employer’s attitude toward its American employees was an ongoing and legiti- mate concern of several employees, as indicated by the testi- mony of Theodore Jackson Jr., and at the time the Petitioner distributed the Nakamura letter, the issue addressed therein had already become an apparent campaign issue as shown by other employee comments regarding who was really manag- ing the company, the American managers or the Japanese managers, and whether the Japanese believed American workers were lazy and/or produced inferior products. How- ever, as far as the record reflects, the Petitioner did not seek to exploit such employee concerns until the distribution of the Nakamura letter. In any event, the degree of the Petition- er’s exploitation of the issue does not add or detract from its relevance to legitimate campaign issues. I find that it was germane to the campaign. Given the fact that the Employer was introducing Japanese management techniques into the American workplace and the obvious differences between the American and Japanese cultures, it would be unreasonable to conclude that Japanese attitudes toward American workers would not be pertinent to evaluation of an issue is the elec- tion or that such a concern would not be a legitimate em- ployment concern for the voters. Third, the subject material did not rise to the level of a sustained appeal to racial hos- tility as was condemned in Sewell, supra; YKK, supra; and Silverman, supra. In those cases, the statements involved were presented by the parties involved in a manner that was obviously intended to be inflamatory. In the instant case, the subject document was a reproduction of a letter by a third party Japanese businessman, obviously expressing his own opinion and the Petitioner did not attempt to exploit that issue with any other material or argument intended to foment or inflame national origin or racial prejudice. Clearly, the Pe- titioner was not responsible for the content of the document, but was reporting opinion as it found it already in print. The Petitioner merely reproduced and caused to be distributed the opinion of one Japanese businessman and provided the voters an opportunity to determine its relevance and the weight to be accorded such third party comments. In fact, the record shows that employees debated the article and, in particular, questioned whether the published remarks contained in the Nakamura letter represented the attitude of their own Em- ployer. The Board stated in Sewell, supra: The ultimate consideration is whether the challenged propaganda has lowered the standards of campaigning to the point where it may be said that the uninhibited desires of the employees cannot be determined in an election. [Id. at 71.] I find the material in the instant case was not so inflam- matory or irrelevant as to destroy the potential for the voters to express their freedom of choice in the election. The article was merely one personal opinion provided as a topic for de- bate. The record reveals that employees did debate the matter in a relevant fashion, i.e., whether or not the document was representative of their Employer’s attitude. Having found that the Petitioner’s distribution of the Nakamura letter did not represent a sustained or inflam- matory appeal to racial prejudice and that the issues raised therein were germane to the election campaign, it appears that the only aspect of the Nakamura letter left to be ad- dressed herein is whether or not it distorted the truth of the Employer’s attitude towards its employees. Although I have concluded that the Petitioner’s republication of the Nakamura letter was essentially a truthful presentation of previously printed material, for reasons set forth below, I find that even if there was some inherent misleading involved in such use of the document as impliedly representative of the Employ- er’s thinking or attitude, such arguable misrepresentation would not warrant setting aside the election. In Midland National Life Insurance Co., 263 NLRB 127 (1982), the Board promulgated the current standard for eval- uation of the truthfulness of campaign propaganda. In es- sence, the Board stated that it would no longer probe the truth or falsity of the parties’ campaign statements, would not set aside elections based on misleading campaign state- ments, and would only intervene in cases involving forged documents or other deceptions which prevented the voters from recognizing the propaganda for what it is. Id. at 133. The Board therein essentially held that employees are suffi- ciently sophisticated to recognize and evaluate campaign propaganda. As indicated herein, the Nakamura letter was truthfully presented in its entirety without any accompanying misrepre- sentation. Moreover, the Employer, in my view, had an op- portunity to effectively respond and rebut the content of the Nakamura letter before the time of the election but failed to 1069 KI (USA) CORP. 4 Presumedly, the Board would have the same approach to racial or national origin issues. adequately avail itself of that the opportunity. Thus, 2-1/2 hours before the election, the Employer had in its possession a copy of a subsequent letter to the editor of the same publi- cation in which another Japanese businessman had roundly admonished Nakamura for his comments about the American worker. The Employer also had prepared a cover memoran- dum explaining the rebuttal nature of the Tsakikoto letter and, more importantly, the Employer’s position that the Tsakikoto letter more accurately represented the attitude of the Japanese people, which position was endorsed by the Employer’s Japanese and American management team. The Employer’s memorandum also states that the Employer’s management firmly believed in the ability of its employees and their objectivity in analyzing the campaign propaganda presented to them. While the Employer’s manager of human resources, Harry David Billups, testified that he had prepared only four or five copies of the Tsakikoto letter and the Em- ployer’s rebuttal cover letter and placed them all in one of two break areas, the Employer’s supervisor, George Bonnet, testified that before the election, there were copies of the re- buttal document in the cafeteria and both break areas. While the Employer conceded that it had the facilities to produce copies of that document in sufficient numbers to provide one for each employee, no effort was made to give the rebuttal any wider distribution, either by posting or delivery to indi- vidual employees. Based on the foregoing, I find that the Petitioner’s dis- tribution of the Nakamura letter did not involve any at- tempted fraud or deceit on the voters such as would have misled them from an informed and objective evaluation of the content of the document. Moreover, the Employer had, but failed to avail itself of, the opportunity to effectively rebut the Nakamura letter. Accordingly, I find that the Peti- tioner’s campaign propaganda did not violate the standard enunciated by the Board in Midland. With respect to the Employer’s reliance upon the state- ments made by rank-and-file employees during the election campaign with respect to their concerns that they were not sufficiently respected or appreciated by the Employer’s Japa- nese management, I find those statements were personal ex- pressions of opinion and understood as such by their fellow employee. Thus, notwithstanding the speaker’s prounion stance in the election campaign, the Petitioner was not an- swerable for such individual commentaries. Although the Board has indicated that third party state- ments sufficient to establish a ‘‘sutained inflammatory appeal or systematic attempt to inject religious issues into a cam- paign’’4 could be sufficient to set aside an electioin, it would not do so on the basis of isolated or casual remarks not at- tributable to the petitioning union. Brightview Care Center, 292 NLRB 352 (1989). In the instant case, I find that the limited remarks of two or three employees during the course of the union campaign, some of which apparently predated the campaign, is insuffi- cient, under the Board test for evaluation of such conduct, to set aside the election herein. Moreover, I have considered such conduct in conjunction with the Petitioner’s distribution of the Nakamura letter, and have concluded that those state- ments and the latter event do not rise to the level of a sus- tained appeal to racial or national origin prejudice or hatred which would warrant setting aside the election. In sum, I have concluded that the totality of the evidence adduced in support of Petitioner’s Objection 3 is insufficient under Board law to warrant setting aside the election herein.