Shepard's Tissue

SHEPHERD TISSUE, INC. 369 Shepherd Tissue, Inc. and United Paperworkers In- ternational Union AFL–CIO, CLC, Petitioner. Case 26–RC–7710 August 26, 1998 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN GOULD AND MEMBERS FOX AND LIEBMAN The National Labor Relations Board, by a three- member panel, has considered objections to a second election held September 25 and 26, 1997, and the hearing officer’s report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 222 votes for and 149 votes against the Petitioner, with 6 challenged bal- lots, an insufficient number to affect the results. The Board has reviewed the record in light of the Em- ployer’s exceptions1 and the briefs of both the Employer and the Petitioner, has adopted the hearing officer’s find- ings2 and recommendations,3 and finds that a certifica- tion of representative should be issued. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for United Paperworkers International Union, AFL–CIO, CLC, and that it is the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All production and maintenance employees, in- cluding shipping and warehouse employees, employed by the Employer at its Memphis, Tennessee facility; but excluding all office clerical employees, professional and technical employees, guards, team managers, and super- visors as defined in the Act. 1 We find no merit in the Employer’s exception concerning the time- liness of the Petitioner’s post-hearing brief filed with the hearing offi- cer. The Board obtained from Region 26 the documentary information necessary to verify that the Petitioner’s delivery service picked up the brief in question on December 4, 1997, the day before the due date. The brief was therefore timely. See Sec. 102.111(b) of the Board’s Rules and Regulations. 2 The Employer has excepted to some of the hearing officer’s credi- bility findings. The Board’s established policy is not to overrule a hear- ing officer’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the findings. In addition, the Employer contends in its exceptions that some of the hearing officer’s findings and conclusions demonstrate bias and preju- dice. On careful examination of the hearing officer’s report and the entire record, we are satisfied that such contentions are without merit. 3 Pertinent portions of the hearing officer’s report are attached as an appendix. In adopting the hearing officer’s recommendation to overrule Objec- tion 2, we find it unnecessary to rely on his observation that there was no evidence that James Harrell’s remark to the Employer’s Director of Human Resources caused any employee to alter his or her voting choice. CHAIRMAN GOULD, concurring. I join my colleagues in adopting the hearing officer’s recommendation to overrule the Employer’s objections to the election and to certify the Petitioner as the unit employees’ collective-bargaining representative. I write separately with regard to the Employer’s Objection 2, alleging that the Petitioner injected racial considerations in the campaign in such a way as to destroy the labora- tory conditions necessary for a valid election. In my view, the Sewell prohibition is inapplicable in the instant case where the Petitioner, in a campaign handbill, included a statement by a discharged unit em- ployee concerning a sexual harassment investigation that “black folk have been wrongly touched by whites for over 300 years.” Racial remarks and campaigning which takes race into account involving the employer-employee relationship are part of the reality of the workplace and therefore a legitimate campaign issue. Such appeals are germane to the solidarity and the working conditions of a racial group during an organizing campaign and accord- ingly are not objectionable regardless of their truth or falsity. I would, however, find objectionable comments, like those in Sewell, which are not germane to the em- ployment relationship and are designed to create or in- flame an atmosphere of racial hatred. Further, I find ob- jections based on racial appeals to be no different from other election objections and would therefore place the burden of proof on the party seeking to set aside the elec- tion. As I have previously noted in my defense of both em- ployee and employer free speech, freedom of expression in the workplace is secured by both the First Amendment and the National Labor Relations Act.1 As the Court rec- ognized in NLRB v. Magnavox Co., “[t]he place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees.”2 The constitu- tional safeguard represents a “profound national com- mitment to the principle that debate on public issues should be uninhibited, robust and wide open.”3 As Jus- tice Douglas stated in his dissent in Beauharnais v. Illi- 1 See my separate opinions in Caterpillar, Inc., 321 NLRB 1178, 1184–1185 (1996); Eldorado Tool, 325 NLRB 222 (1997); and Hale Nani Rehabilitation & Nursing Center, 326 NLRB No. 37 (1998). 2 415 U.S. 322, 325 (1974). See also Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Although Republic Aviation does not contain the explicit language of Magnavox, the Court’s rationale rests upon the premise that the workplace is the central forum for discussion about unionization. 3 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). In Cat- erpillar, Inc., 321 NLRB at 1184 (1996), I found that employee activity that seeks to influence management policy is protected and noted that cases rising under Sec. 7 have drawn sustenance from the First Amendment decisions of the Court in New York Times v. Sullivan and its progeny, all of which promote wide open and robust speech as part of good public policy. 326 NLRB No. 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370 nois, “if in any case other public interests are to override the plain command of the First Amendment, the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster.”4 In 1941, the Court first recognized that an employer enjoys a free speech right to express opinions that are noncoercive in manner.5 With the enactment of the Taft- Hartley Amendments, Congress expressly provided through Section 8(c) of the Act, that “[t]he expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice . . . if such ex- pression contains no threat of reprisal or force or promise of benefit.” In attempting to balance the employer’s free speech right with the equal right of employees to associ- ate freely as guaranteed by Section 7 of the Act and pro- tected by Section 8(a)(1) and the proviso to Section 8(c), the Court concluded that an employer may freely com- municate his general views about unionization or his specific views about a particular union as long as that communication contains neither a threat of reprisal nor a promise of benefits.6 Employees as well as unions and their representatives enjoy a comparable right of free speech. Relying on its landmark decisions protecting First Amendment activity, the Court has recognized the free speech right of em- ployees and of unions and their agents to discuss the ad- vantages and disadvantages of unionization.7 As the Court instructed in deeming the efforts of a union official to organize workers constitutionally protected, “[t]he 4 343 U.S. 250, 284–285 (1952). 5 NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941). I recognize that Sec. 8(c) has no application in representation cases. See General Shoe Corp., 77 NLRB 124, 127 (1948). As the Board noted in Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1787 fn. 11 (1962), however, the “strictures of the First Amendment, to be sure, must be considered in all cases.” 6 NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). Under Gissel, the Board may limit what would otherwise constitute employer First Amendment rights only to condemn three types of statements: promise of benefits; threats of reprisals; and predictions of adverse economic consequences suggesting that the action will not occur out of economic necessity but because the employer will seek to penalize concerted activity. 7 Thomas v. Collins, 323 U.S. 516, 532 (1945), and Staub v. City of Baxley, 355 U.S. 313 (1958). See Linn v. Plant Guard Workers Local 114, 383 U.S. 53 (1966), where the Court applied constitutional protec- tion to the speech of employees as it relates to the statutory scheme of the National Labor Relations Act. Accord: generally, Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); Southwestern Bell Telephone Co., 200 NLRB 667 (1972); Inland Steel Co., 257 NLRB 125 (1981); Borman’s Inc. v. NLRB, 676 F.2d 1188 (6th Cir. 1982); Southern California Edi- son Co., 274 NLRB 1121 (1985); Tyler Business Services, 256 NLRB 567 (1981); and Gatliff Coal Co. v. NLRB, 953 F.2d 247 (6th cir. 1992). See also Rankin v. McPherson, 483 U.S. 378 (1987). Drawing inspira- tion from Linn, which relied on New York Times v. Sullivan, 376 U.S. 254 (1964), as a basis for determining what employee speech is pro- tected under Sec. 7 and removed from state defamation and libel law, I relied upon the First Amendment authority in Brandenburg v. Ohio, 395 U.S. 444 (1969), in my separate opinion in Caterpillar, Inc., 321 NLRB 1178, 1184–1185 (1996). right thus to discuss, and inform people concerning, the advantages and disadvantages of unions and joining them is protected not only as part of free speech, but as part of free assembly.”8 In Sewell, the Board did not prohibit the parties’ dis- cussion of race during representation elections. In that case, the Board set aside the election because the em- ployer’s campaign arguments were deemed inflammatory in character, designed to set white workers against black workers, and represented an appeal to racial animosity rather than to consideration of economic and social con- ditions and of possible actions to deal with them.9 While the Board concluded in Sewell that appeals to racial prejudice on matters unrelated to either election issues or the union’s activities create conditions which make im- possible a sober, informed exercise of franchise, the Board noted that “[t]his is not to say that a relevant cam- paign statement is to be condemned because it may have racial overtones.”10 The Board concluded, however, that [s]o long, therefore, as the party limits itself to truth- fully setting forth another party’s position on matters of racial interest and does not deliberately seek to over- stress and exacerbate racial feelings by irrelevant, in- flammatory 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. [Citations omitted. 138 NLRB 71–72.] I am of the view that the basic principles of Sewell and its companion case, Allen-Morrison Sign Co.,11 are cor- rect. My departure from those holdings lies in the bur- den that is placed on the party making the racial appeal, in the requirement that the appeal be truthful and in the 8 Thomas v. Collins, 323 U.S. at 532 (1945). 9 See Baltimore Luggage, 162 NLRB 1230 (1967). 10 138 NLRB at 71. 11 138 NLRB 73 (1962). In Allen-Morrison, the Board found non- objectionable an employer’s campaign letters that contrasted the em- ployer’s position on the issue of segregation, that each person is entitled to his own view, with the position of the “national unions” who have “taken the view that they are supposed to decide the question of segre- gation or integration and they have actively promoted integration.” The letters had also included a copy of an article from “Militant Truth,” a four-page monthly paper published in Greenville, South Carolina, concerning the international union’s actions to prevent one of its local unions in a nearby town from financing a segregated school. The Board concluded that the employer did not resort “to inflammatory propaganda on matters in no way related to the choice before the vot- ers, and we therefore decline to set the election aside.” While the Board applied the appropriate standard, the result is incorrect. In my view, the application of the Sewell test to these facts requires the con- clusion that the employer’s racial appeal is one clearly intended to divide workers along racial lines. The effect of such an appeal is the creation of an unjustified clash of interests between groups of workers which tends to reduce the likelihood and effectiveness of their working in concert to achieve their legitimate goals under the Act. SHEPHERD TISSUE, INC. 371 unrealistic and inappropriate symmetry between unions and employers assumed by those decisions and their progeny. In my view, regardless of whether the appeal is made by the employer or the union, the burden should be on the objecting party to establish that a racial remark is designed to incite racial hatred. Nor would I find that the truth or falsity of the racial appeal is relevant to the determination of whether it rises to the level of objec- tionable conduct.12 An erroneous statement is inevitable in free debate, but such statements must be protected if freedom of expression is to retain the “breathing space” it needs to survive.13 Racial protests and grievances—and those about sexual discrimination and other forms of alleged arbitrary treatment—are properly promoted, not smothered and suppressed, by the statutory scheme which we administer.14 Further, placing the burden on the party seeking to have the election set aside and elimi- nating the requirement that the truthfulness of the racial remarks be established, diminishes the potential for wasteful litigation that is now present in this area.15 For 12 This view is consistent with the Board’s refusal to inquire into the truth or falsity of parties’ campaign statements in general or set aside elections on the basis of misleading campaign statements. Midland National Life Ins. Co., 263 NLRB 127 (1982). Thus, I do not subscribe to the Sixth Circuit’s view in KI (USA) Corp. v. NLRB, 35 F.3d 256, 260 (6th Cir. 1994) that “the Midland standard is the wrong one to apply to allegations of racial bias.” 13 New York Times v. Sullivan, 376 U.S. at 271–272 (1964) (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)). Sewell and Allen- Morrison, decided by the Board in 1962, could not take into account the relevance of Sullivan to this issue. Cf. Carey v. Brown, 447 U.S. 455 (1980) (Illinois statute unconstitutional because it discriminates among pickets based on the subject matter of their expression.). 14 Cf. Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50 (1975); NLRB v. Tanner Motor Livery, Ltd., 419 F.2d 216 (9th Cir. 1969); Gould, Black Power in the Unions: The Impact Upon Collective Bargaining Relationships, 79 Yale L.J. 46 (1969); and Gould, Labor Arbitration of Grievance Involving Racial Discrimina- tion, 118 U. Pa. L. Rev. 40 (1969). 15 See my dissent in Flint Iceland Arena, 325 NLRB 318 (1998), where I also urge the diminishment of potentially wasteful litigation within the context of non-Board settlements. Illustrative of a decision which substantially diminished litigation through its broad and clear mechanical rule relating to jurisdiction was Management Training, 317 NLRB 1355 (1995). The doctrine in Management Training has been approved in Teledyne Economic Development v. NLRB, 108 F.3d 56 (4th Cir. 1997), and in Pikeville United Methodist Hosp. v. NLRB, 109 F.3d 1146 (6th Cir. 1997), where we asserted jurisdiction over private employers. In my separate opinion in Legal Aid Society of Alameda County, 324 NLRB 796 (1997), I stated that I would overrule the Board’s decision in Detroit College of Business, 296 NLRB 318 (1989), because its multi-factor test for determining whether profes- sionals possess supervisory status which would exclude them from statutory coverage is confusing and improperly focused on the work of the professional rather than the work of the employee being supervised, and thus inconsistent with the Board’s efforts to diminish wasteful and unnecessary litigation. Consistent with this view, I have also advocated that the promotion of voluntary recognition agreements in order to avoid unnecessary litigation. See Smith’s Food & Drug Centers, Inc., 320 NLRB 844, 847–848 (1996) (Gould, W., concurring). The Board has concurred with this approach in its promotion of settlement agree- ments negotiated where a decertification petition has been filed and an example, in applying Sewell, the courts have contributed to this wasteful litigation by increasing the complexity of the Board’s test and by engaging in a convoluted analysis involving a number of factors beyond the existing re- quirement that the racial appeals be truthful and ger- mane.16 By applying the test I have set forth above, much of this unnecessary litigation will be eliminated. Because the employer controls the employment rela- tionship and, in almost all circumstances, possesses more economic power than does the individual employee,17 the Board’s concerns about racial appeals expressed in Sew- ell and Allen-Morrison have peculiar applicability to remarks of employers as opposed to those of unions and their representatives. In cases involving employers, like Sewell and Allen-Morrison, it is to be recalled, employers attempted to divide workers on the basis of racial appeals unrelated to working conditions and the workplace and to incumbent union has an established relationship with the employer. Douglas-Randall, Inc., 320 NLRB 431 (1995). This policy is the well- spring for the Board’s rule giving the Board’s administrative law judges authority to act as settlement judges. Under this rule, a judge “other than the trial judge” may be assigned to a case “to conduct settlement negotiations,” provided all parties agree. Where “feasible,” settlement conferences are held in person, and settlement judges may delve more deeply into all aspects of a case than the judge who will ultimately hear and decide the case absent settlement. 16 See Carrington S. Health Care Center v. NLRB, 76 F.3d 802 (6th Cir. 1996), (In finding that the Board had improperly overruled the employer’s objection without a hearing, the court considered additional evidence of preelection racial discord at the employer’s facility, and found that despite references to legitimate campaign issues, the imagery of two cartoons distributed by the union could also be construed as invoking tokens of slavery and racial oppression and that a quote from Dr. Martin Luther King could be interpreted as being directed to a certain “people,” i.e., the racial group at issue and therefore the quote has some relevance to whether racial polarization existed.); and KI(USA) Corp. v. NLRB, 35 F.3d 256 (6th Cir. 1994) (In applying Sewell standard, court considered not only whether union’s racial ap- peal was germane to any campaign issues at the employer’s facility and truthfully represented the employer’s position on racial matters but also whether the employer had the opportunity to respond to the union’s racial appeal and the difficulty of responding to such attacks at all.). See also NLRB v. Katz, 701 F.2d 703 (7th Cir. 1983); and NLRB v. Silverman’s Men’s Wear, Inc., 656 F.2d 53 (3d Cir. 1981). Insofar as the court’s decisions in Katz and Silverman’s rest upon the promotion of racial or ethnic hatred, I am in accord with setting aside an election on that basis. 17 The employer wields considerable economic power over its em- ployees who depend completely on their jobs for their livelihood and economic existence. As a result of this economic power, an employer’s statement is imbued with a “force independent of persuasion.” NLRB v. Federbush Co., Inc., 121 F.2d 954, 957 (2d Cir. 1941). See also NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969) (Any assessment of the precise scope of employer expression must be made in the context of its labor relations setting and any balancing of an employer’s free speech right with the equal right of employees to freely associate must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.), and NLRB v. Falk Corp., 102 F.2d 383, 389 (7th Cir. 1938) (“The position of the em- ployer . . . carries such weight and influence that his words may be coercive when they should not be so if the relation of master and ser- vant did not exist.”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372 frustrate the possibility of effective concerted activity.18 Similar union appeals which are designed to divide workers through nostrums of racial hatred or to accom- plish the same objective in the employer-employee rela- tionship must be condemned under our Act as well. In this respect, the principles of Sewell and Allen-Morrison must be retained. But, generally speaking, union organ- izational efforts aimed at blacks and other racial minori- ties and women must necessarily focus, in part, upon grievances peculiar and unique to such groups, i.e., em- ployment conditions which are attributable to racial in- equities or what appear to be racial inequities and other forms of arbitrary treatment. The facts of this case are illustrative. The Employer alleges objectionable conduct in the dissemination of a statement made by a unit employee in reference to the investigation of an alleged instance of sexual harassment between a black employee and a white employee. While the statement suggests a racial message, it also raises valid workplace issue. Appeals based on racial solidarity or expressions of grievance based on racial discrimina- tion are indistinguishable from appeals to employees’ economic and social self-interest which the Board has long recognized as a legitimate tactic in any union orga- nizing campaign.19 In Novotel New York,20 the Board recognized that, under the statutory scheme of the Act, unions have an essential role in assisting workers in the exercise of their Section 7 rights to better their working conditions and, to fully play this role, unions engage in a broad range of activity on behalf of both the employees they represent as well as the employees they are seeking to organize. In Novotel, the Board found that that a union’s provi- sion of legal services to employees they were seeking to organize including investigating, preparing, and filing a lawsuit asserting the employees’ wage claims under the Fair Labor Standards Act was protected by the First Amendment and the Act and not an objectionable grant of benefit that would warrant setting aside the election.21 In reaching this conclusion, the Board noted that, histori- cally, unions had undertaken a wide variety of actions 18 I would apply the standard of Sewell and Allen-Morrison to divi- sive and inflammatory comments even, in some circumstances, where the commentary relates to employment conditions. Cf. United Pack- inghouse Workers v. NLRB, 416 F.2d 1126 (1969), cert. denied 396 U.S. 903 (1969). 19 See Coca-Cola Bottling Co., 273 NLRB 444, 445 (1984) (Regard- less of racial implication, the issue of whether employees have been unfairly treated, for whatever the reason, is always a legitimate topic of discussion in a union campaign.). 20 321 NLRB 624 (1996). 21 The union began an organizing drive among hotel workers and during the campaign, the union received many complaints about alleged irregularities in the payment of overtime wages to the workers. Id. a 624. A suit alleging violations of the Fair Labor Standards Act of 1938 was filed by the union on behalf of the employees and the issue pre- sented to the Board was whether the union’s litigation was a “benefit” which interfered with the conduct of the election. and tactics to protect and advance the rights of workers including training programs, litigation, and the advocacy and monitoring of legislation to advance their goals.22 Relying on NAACP v. Button, one of the Supreme Court’s decisions establishing that organizations which bring or financially support lawsuits seeking to vindicate the legal rights of their members or nonmembers are en- gaged in a constitutionally protected form of free speech safeguarded by the First Amendment,23 the Board found that constitutional and statutory precedent provided pro- tection for both members and nonmembers in the union’s organizational campaign and that protection was not re- moved “ . . . the moment the union took the next logical step and sought financially or otherwise to assist non- members in gaining access to the Courts for vindication of their lawful rights.”24 In the instant case, the credited evidence established that the issues of common concern to employees in- cluded wages and benefits, worker safety, equal treat- ment of employees and unjust discharges of employees. The racial appeals in the Petitioner’s handbill were thus clearly germane to the employer-employee relationship. Suppose the Petitioner had instituted litigation or of- fered legal advice with or without the prospect of litiga- tion to employees in the bargaining unit pursuant to Title VII of the Civil Rights Act of 1964 and related employ- ment discrimination legislation. Should the election be set aside? Novotel make it clear that, unless the Board will treat employment discrimination differently than other employment problems and litigation or accord it less status, the answer is in the negative. The principles of Novotel make it clear that the promotion or acknowl- edgment of employee grievances, racial or otherwise, are appropriate under the Act. While I agree that racial discrimination and sexual harassment are complex problems, the answer is not to discourage open debate where these issues concern em- ployees’ working conditions. These issues were not in- jected into the campaign by the Petitioner, but reflected an existing workplace concern. The reality of the work- place is that discussions between employees, unions, and management is frequently rough and tumble, but the Board cannot and should not function as a censor of these debates over issues germane to the employment relationship. Under my view, until the rhetoric reaches the point at which it is no longer relevant to the discus- sion of unionization and is intended only to promote an atmosphere of racial hatred, the Board should not con- demn racial appeals. Accordingly, I would retain the core of Sewell and Al- len-Morrison but revise some aspects of the holdings of 22 321 NLRB at 629–630. 23 371 U.S. 415 (1963). See also Railroad Trainmen v. Virginia Bar, 377 U.S. 1 (1964); Mine Workers District 12 v. Illinois State Bar Assn., 389 U.S. 217 (1967); and In Re Primus, 435 U.S. 412 (1978). 24 321 NLRB at 632. SHEPHERD TISSUE, INC. 373 those cases. I would adhere to the principles of free speech and freedom of association adumbrated by the Supreme Court in NAACP vs. Alabama25 and NAACP v. Button.26 I would remain faithful to the approach taken by our Board 2 years ago when we applied those princi- ples to our Act in Novotel. Therefore, I join my colleagues in adopting the hearing officer’s recommendation to overrule the employer’s objections to the election and certifying the Petitioner. In so doing, I vote for the principles of free speech and em- ployee free choice promoted and sanctioned by the Act and the First Amendment. APPENDIX OBJECTION 2 The Employer claims that employees were denied a free and uncoerced choice regarding unionization because the Petitioner promulgated “campaign propaganda deliberately calculated to overemphasize and exacerbate racial/religious tensions among employees by inflammatory appeals” which destroyed the pre- requisite laboratory conditions and affected the outcome of the election. Counsel for the Employer claims that one such incident oc- curred when the Petitioner distributed its September 11,. issue of the ‘The Union Issue” to employees. (Employer’s Exhibit 3)8 The handbill in question has a picture of Harrell and a lead caption “Why was James Harrell Fired?” The article contains a quote from Harrell, who is black, that he admittedly made to the Director of Human Resources, Randy Rocha, who is white.9 The Employer claims that Harrell’s statement “Black folk have been wrongly touched by whites for over 300 years” is “an inflammatory appeal to racial prejudice.” Rocha met with Harrell while conducting an investigation of an alleged inci- dent of sexual harassment concerning a black woman who had complained about a white employee who had touched her. Harrell was terminated by the Employer on August 21, “be- cause he interfered with a sexual harassment investigation . . . .” The foregoing termination is subject of an unfair labor prac- tice charge being investigated at the time of the hearing. Harrell, who became a paid employee of the Petitioner after he was terminated by the Employer, admitted that he met with approximately 200 of the Employer’s employees and informed them that he had been wrongfully terminated. He also told the employees that he had apprised “[m]anagement that black folk had been wrongfully judged by white folks for over three hun- dred years.” Counsel for the Employer contends in his brief that Harrell did not utter the statement in question to Rocha during their meeting. 25357 U.S. 449 (1958) (Immunity from state scrutiny of membership lists which NAACP claimed on behalf of its Alabama members was so related to the right of members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.). 26371 U.S. 415 (1963). Cf. H. Kalven, the Negro and the First Amendment (Ohio State University Press 1965). 8 Counsel for the Employer inadvertently refers to Employer’s Exh. 3 as Employer’s Exh. 2 in his brief. 9 Rocha served as Employer’s representative at the hearing, but did not testify. Employer’s Counsel also notes that officers and agents of the Petitioner actively sought the support of black employees, es- pecially the 188 new employees who were mostly black, ac- cording to Petitioner’s monthly magazine. (Employer’s Exhibit 2) “Adding fuel to the fire,” Employer Counsel cites is the Peti- tioner’s “enlisting the support of the Memphis Baptist Ministe- rial Association, [hereinafter known as the Association] an organization of local black ministers . . . .” The evidence indi- cates that Harrell, Petitioner’s organizer Curtis Hawkins, and two other representatives for the Petitioner, attended the meet- ing with the Association. Hawkins stated, and Harrell corrobo- rates, that he spoke to the Association on behalf of the group and asked them to support the workers. The Petitioner prepared a letter to the Employer on the Association’s letterhead. Reverend Donald Castle, secretary for the Association, stated that every Tuesday the Association meets and it is common for politicians, business people, and others to speak at the meeting. Castle was unsure if the meeting occurred on September 16 or before, but he noted that someone read to the group for a few minutes and then a vote was taken to determine if the Associa- tion would support the employees, which they did. Employer’s Exhibit 7 is a letter dated September 16 sent to the President of the Employer from the Association along with six pages of member’s signatures. The letter noted that a group of clergy had recently met and discussed problems the Em- ployer’s employees were having and the Association proposed that in the best interest of the employees that the Employer adopt a “Fair Campaign Practice Pledge,” set forth below. Allow union representatives and supporters to have equal time at any meeting employees are required to attend and/or where unions are discussed, Give union supporters the same opportunity as the company to post union material or distribute material without harass- ment, Allow employees to express their opinions freely and openly, without fear of company intimidation or discipline, about their pro-union views, Treat all employees with respect during the union campaign, allowing a free and unencumbered election. When union rep- resentation is decided, Sheperd immediately enter into fair negotiation with the employees’ chosen representatives aim- ing at reaching a mutually agreed upon collective bargaining agreement. The Petitioner distributed Employer’s Exhibit 7 to employ- ees during the campaign. Whereupon, the Employer responded with a handbill of its own. That handbill, Petitioner’s Exhibit 12, indicates that the Petitioner failed to inform the Association of the “TRUTH” that the rerun election is due to “. . . certain conduct of the Union interfered with the employees’ exer- cise of a free and reasonable choice. . . .” (emphasis not added) Moreover, the Employer’s handbill informs employees that the Petitioner failed to inform the Association that two of its supporters were discharged for threats and for racial harass- ment and “[i]f the UPIU will intentionally misrepresent the true facts to the Memphis Baptist Ministerial Association we can only imagine what this group has said to you.” The Employer notes on the handbill that it will abide by the National Labor Relations Act and asked its employees to support it and vote no. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374 The Employer contends that race was one of the main issues in the campaign and supports that contention with the testimony of Mae Francis White, a black employee, who stated that Har- rell’s remark was talked about every day. Another witness for the Employer was Linda Mabary, a white employee, who noted that she thought Harreil’s remark in the “The Union Issue” was interjecting race into the campaign. However, Employer wit- ness Kevin Hyman, a black employee, testified that he did not discuss the remark with anyone and that it did not impact him at all. Marie Williams, a black employee, testified that Harrell’s remark did not affect her at all. In fact, none of the Employer’s witnesses testified that Harrell’s remark altered the way they were going to vote. Ron Spann, union organizer, testified that such issues as “seniority, equal pay for equal work, equal treatment to em- ployees, and unjust discharges” were prevalent throughout the campaign. Spann noted that one of the main issues in the cam- paign was employee safety since several employees had been injured. In addition, numerous documents or handbills were distributed to the employees in one form or another from the Petitioner or the Employer (Emp.Exhs. 1, 3, 6; P. Exhs. 4–44, 46) concerning various campaign issues. Also, the text of a video transcript shown to employees by the Employer (P. Exh. 45) demonstrates that wages, job benefits, the future of the facility if the Petitioner wins the election, the amount of dues to be paid to the Petitioner and how that money is spent by the Petitioner were all issues that concerned the Employer. Counsel for the Employer contends that “[t]he sole purpose for publishing Harrell’s alleged statement to the white Human Resource Manager and about a white employee touching a black employee was to suggest alleged mistreatment of black persons by white persons.” (emphasis not added) The Employer also contends that the Petitioner promoted Harrell’s remarks and sought the aid of the Association in order to persuade black voters from voting for the Employer. Thus, the Employer has established a prima facie case that the Petitioner used “inflam- matory appeal” to racial feelings thereby shifting the burden to the Petitioner to “show that its remarks were ‘truthful and ger- mane.”’ See Sewell Mfg. Co., 138 NLRB 66 (1962) Based on the totality of the evidence. l do not find Harrell’s remark, as quoted above, was so offensive and inflammatory that a fair election was impossible. See Catherine’s Inc., 316 NLRB 186 (1995); Coca-Cola Bottling Co., 273 NLRB 444 (1984); Vitek Electronics, 268 NLRB 522, 527–28 (1984) See generally, Case Farms of North Carolina 320 NLRB No. 97 (1996), enfd 128 F.3d 841 (4th Cir. 1997); Englewood Hospi- tal, 318 NLRB 806, 807 (1995); Brightview Care Center, Inc., 292 NLRB 352 (1989). The Employer claims that Harrell did not make the remark in question to Rocha and thus the Petitioner disseminated false information. However, I credit Harrell’s unrebutted testimony wherein he admitted he made the remark which the Petitioner subsequently disseminated to employees via a handbill. Harrell expressed his personal opinion based upon his life experiences when he met with Rocha. The statement Harrell made to Rocha that “Blacks have been wrongly touched by whites for 300 years” conjures up thoughts of a master-slave relationship whether on a plantation, in a factory, or in society in general. I am mindful of historical facts that inform us that the type of incident Harrell was referring to has certainly oc- curred in the past, and while things have recently improved, there is no reason to believe that such repugnant conduct has been eradicated. Thus, Harrell’s statement merely placed these matters into a historical setting well understood by all, blacks in particular. See Coca-Cola, supra. The Employer further claims that the Petitioner embarked on a campaign which sought to overstress and exacerbate racial feelings with irrelevant and inflammatory appeals to racial prejudices. See Sewell, supra. The credited evidence is over- whelming that wages and benefits, worker safety, and the im- pact the selection of a union will have on the employees were the main issues in the campaign. Other issues in the campaign consisted of equal treatment of employees and unjust dis- charges of employees. Harrell’s remark to Rocha during an investigation of alleged sexual harassment and Harrell’s subse- quent termination were germane to the campaign and therefore permissible conduct. See Beatrice Grocery Products, 287 NLRB 302 (1987). It should also be noted that there is no evi- dence that Harrell’s remark caused one employee to alter how they were going to vote. As for the Employer’s claim that the Association’s letter sent to the Employer and distributed to employees constitutes an appeal to racial and religious prejudices, I fail to discern how the letter could have reasonably tended to destroy the atmos- phere necessary for the exercise of an employee’s free choice thereby interfering with the election. I find that the letter in question was not an attempt to inflame racial or religious preju- dice or to pit one race against another or one religion against another. In fact, the letter does not insult or slur any racial group or any religious group. Rather, the Association’s letter merely requests the Employer to conduct a fair election and delineates how that can be accomplished. Moreover, the Em- ployer distributed a handbill of its own regarding the Associa- tion’s letter. With a handbill from each party, the employees should be viewed as “mature individuals who are capable of recognizing campaign propaganda for what it is and discount- ing it.” Midland National Life Insurance Co., 263 NLRB 127, 132 (1982), citing Shopping Kart Food Markets, 228 NLRB 1311, 1313 (1977). The Employer further contends in a footnote that the Peti- tioner’s meeting with “Shep Wilburn, a well-known, black politician in the Memphis community” and soliciting the use of his name “contributed to the racial issue fanned by the [Peti- tioner].” Along that same thought, the Employer alleges that the Petitioner soliciting a letter from and later distributing a letter from U.S. House of Representative Harold E. Ford, Jr., a black congressman, to the Employer’s President Suda Bhagwat, fur- ther “heighten[ed] and exacerbate[d]” racial tensions. (Emp. Exh. 5.) The involvement of the two previously noted black men in the campaign does not under these conditions “heighten and exacerbate” racial tensions. See Baltimore Luggage Co., 162 NLRB 1230 (1967). It appears from the totality of the Em- ployer’s evidence, that any connection, however tenuous, be- tween prominent black individuals or prominent black associa- tions and the Petitioner’s campaign ipso facto establishes an “inflammatory appeal to racial prejudices” since the majority of its employees are black. I am unaware of any case law that supports that proposition. Therefore, I recommend that the Employer’s Objection 2 be dismissed in its entirety.