KI (USA) Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1063 (N.L.R.B. 1992)

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
1065KI (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
1067KI (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
1069KI (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.