Shepard's Tissue

National Labor Relations Board - Board Decisions

Aug 26, 1998

326 N.L.R.B. 369 (N.L.R.B. 1998)

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.