CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... 1996 WL 33455030 (C.A.4) (Appellate Brief) United States Court of Appeals, Fourth Circuit. CASE FARMS OF N.C., Incorporated, Petitioner - Appellant/Cross-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Respondent - Appellee/Cross-Appellant, NATIONAL POULTRY WORKERS ORGANIZING COMMITTEE, Intervenor. Nos. 96-1402(L), 96-1566 XAP. June 6, 1996. On Appeal from the National Labor Relations Board Brief of Appellant/Cross-Appellee David P. Hiller, Millisor & Nobil, Suite 3737, Huntington Center, 41 South High Street, Columbus, Ohio 43215, (614) 224-1010, Counsel for Appellant/Cross-Appellee. *iii TABLE OF CONTENTS DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION .............................................................. TABLE OF CONTENTS ............................................................................................................ TABLE OF AUTHORITIES ....................................................................................................... STATEMENT OF JURISDICTION ........................................................................................... STATEMENT OF ISSUES ......................................................................................................... STATEMENT OF THE CASE ................................................................................................... A. Nature of the Case. ................................................................................................................. B. Course of Proceedings. ............................................................................................................ STATEMENT OF FACTS .......................................................................................................... SUMMARY OF ARGUMENT .................................................................................................. I. THE LABORERS' EFFORT TO EXPLOIT ETHNIC FEARS .............................................. II. THE CUMULATIVE EFFECT OF THE LABORERS' MISCONDUCT ............................ ARGUMENT .............................................................................................................................. I. INTRODUCTION. .................................................................................................................. II. STANDARD OF REVIEW ................................................................................................... III. THE NATIONAL LABOR RELATIONS BOARD ERRED IN CERTIFYING THE RESULTS OF THE ELECTION IN LIGHT OF THE UNION'S PUBLICATION OF BLATANT MISREP-RESENTATIONS WHICH WERE INTENDED, AND HAD THE LIKELY EFFECT, OF GENERATING FEAR AMONGST HISPANIC VOTERS ................ A. The Union's Use of Misrepresentations to Exploit Ethnic Fears ............................................. B. The “Intent” and “Likely Effect” of the Union's Misrepresentation Was to Generate Fear Among Hispanic Voters ............................................................................................................... *iv C. The Hearing Officer Improperly Excluded Evidence Relevant to the “Intent” and “Likely Effect” of the Union's Misrepresentations. ...................................................................... D. The Hearing Officer Erroneously Relied Upon KI (USA) ..................................................... E. The NLRB Failed to Explain Its Deviation From Zartic ........................................................ IV. THE BOARD ERRED IN CERTIFYING THE RESULTS OF THE ELECTION SINCE THE CUMULATIVE EFFECT OF THE UNION'S MISCONDUCT WAS TO DESTROY LABORATORY CONDITIONS FOR AN ELECTION. ........................................................... CONCLUSION ............................................................................................................................ CERTIFICATE OF SERVICE .................................................................................................... © 2016 Thomson Reuters. No claim to original U.S. Government Works. i iii v 1 1 2 2 2 4 10 10 11 12 12 13 13 13 21 28 38 42 43 49 50 1 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... *v TABLE OF AUTHORITIES Cases Carrington South Health Care Center, Inc. v. NLRB, 76 13,24 F.3d 802 (6th Cir. 1996) ................................................. Crown Coach Corp., 284 NLRB 1010, 1011 (1987) .......... 12,46-47 Electronic Components Corp. v. NLRB, 546 F.2d 1088 12 (4th Cir. 1976) ................................................................ Fernandez v. Industrial Comm'n, 419 P. 2d 542 (1966) ...... 42 General Shoe Corp., 77 NLRB 124, 127 (1948) ................ 12 Hampton v. Mow Sun Wong, 425 U.S. 88, 102 (1976) ...... 41 Jamesway Corp. v. NLRB, 676 F.2d 63 (3rd Cir. 1982) .... 41 KI (USA) Corp., 309 NLRB 1063 (1992) ....................... 38,39,40,42 KI (USA) Corp. v. NLRB, 35 F.3d 256, 258 (6th Cir. 13 1994) ............................................................................... Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 13 1989) ............................................................................... Midland National Life Ins. Co., 263 NLRB 127, 132 25 (1982) .............................................................................. NLRB v. Claxton Mfg. Co., 613 F.2d 1364 (5th Cir. 46 1980) ............................................................................... NLRB v. Curtin, Matheson Scientific, Inc., 494 U.S. 775, 42 799 n.2 (1990) quoting Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 852 (1970) .................................... Q. B. Rebuilders, Inc., 312 NLRB 1141 (1993) ................ 12,35,41 Sewell Mfg. Co., 138 NLRB 66 (1962) ............................ 13 Swing Staging, Inc., v. NLRB, 994 F.2d 859, 863 (D.C. 11-12,43 Cir, 1993) ........................................................................ Teen-Ed, Inc., v. Kimball Intern, Inc., 620 F.2d 399, 403 30 (3rd Cir. 1980) ................................................................ U.S. v. Figueroa-Mendoza, 9 Fed. Evid. Rep. (Callaghan) 33 628 (9th Cir., 1981) (unpublished) .................................. *vi U.S. v. Mosquera, 816 F.Supp. 168, 175 (E.D. N.Y., 41 1993) ............................................................................... U.S. v. Patino, 649 F.2d 724, 727 (9th Cir., 1981) ............ 42 U.S. v. Pavia, 892 F.2d 148, 157 (1st Cir. 1989) ............... 30 U.S. v. Williams, No. 91-1989, U.S. App. (6th Cir., May 42 19, 1992) (unreported) .................................................... Winant v. Bostic, 5 F.3d 767, (4th Cir. 1993) ................... 33 Zartic, Inc., 315 NLRB 495 (1994) ................................. 1,10,11,13,14,15 16,19,21,25,28 29,38,39,40,42 Other Authorities Fed. R. Evid. 701 ............................................................ 1,11,30,33 *1 STATEMENT OF JURISDICTION The National Labor Relations Board (“NLRB” or “Labor Board”) has subject matter jurisdiction pursuant to §10(c) of the Labor Management Relations Act of 1947 (“the Act”), 29 U.S.C. §160(c), to issue a final order finding an employer to be in violation of §8(a)(5), 29 U.S.C. §158(a)(5), of the Act and directing such employer to bargain with a labor organization. The NLRB issued such an order against Petitioner on February 13, 1996 in Case 11-CA-16814. This Court has jurisdiction pursuant to §10(f) of the Act, 29 U.S.C. §160(f), to set aside a final order of the NLRB on the petition of any person aggrieved by such order. Case Farms of N.C., Inc., having been aggrieved by the Board's order in Case 11-CA-16814, filed its Petition for Review on March 29, 1996. This appeal is from a final order of the NLRB which disposed of all claims with respect to the parties. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... STATEMENT OF ISSUES 1. Whether the Union deprived 350 Hispanic aliens of an uncoerced choice by publishing misrepresentations which were carefully crafted to generate ethnocentric fear among non-Englishspeaking voters. 2. Whether the National Labor Relations Board failed to supply a reasoned analysis for its departure from its decision in Zartic, Inc., 315 NLRB 495 (1994). 3. Whether the Hearing Officer improperly excluded lay opinion testimony which was both admissible under Fed. R. Evid. 701 *2 and highly probative regarding the “likely effect” of the Union's effort to engender fear among Hispanic alien voters. 4. Whether the National Labor Relations Board and its Hearing Officer improperly placed the burden of proof upon Petitioner. 5. Whether the cumulative effect of the Union's misconduct was to deprive the voters of an uncoerced choice and whether the Board failed to assess the cumulative impact issue. 6. Whether the National Labor Relations Board erred in finding that Petitioner violated §8(a) (5) of the National Labor Relations Act by refusing to bargain with an improperly certified union. STATEMENT OF THE CASE A. Nature of the Case. This case questions the propriety of the National Labor Relations Board's certification of the National Poultry Workers Organizing Committee, Affiliated with the Laborers' International Union of North America, AFL-CIO (the “Union” or “Laborers”) as the exclusive collective bargaining representative of the employees of Case Farms' Morganton, North Carolina, poultry processing plant. B. Course of Proceedings. The NLRB conducted a secret ballot election at Case Farms' Morganton, North Carolina poultry processing plant on July 12, 1995. The Union prevailed in the election by a vote of 238 to 183, with 24 challenged ballots. On July 19, 1995, Case Farms filed timely objections to conduct affecting the results of the election. The principal issue *3 presented by Case Farms' objections was whether the requisite “laboratory conditions” for an election were destroyed when the Union used deliberate misrepresentations to engender ethnocentric fear amongst 350 non-Englishspeaking alien-voters. On August 1, 1995, the Regional Director for Region 11 issued a Notice of Hearing and an evidentiary hearing was held before Hearing Officer Rosetta B. Lane on August 9-10, 1995. On September 12, 1995, the Hearing Officer issued her Report recommending that Case Farms' objections be overruled. On September 25, 1995, Case Farms filed timely exceptions to the Hearing Officer's Report. On December 12, 1995, the NLRB issued its “Decision and Certification of Representation,” summarily adopting Hearing Officer Lane's findings and recommendations and certifying the Laborers as the exclusive bargaining representative. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... By letter dated December 14, 1995, the Union requested the commencement of collective bargaining negotiations. in order to obtain judicial review of the Board's certification of the Union, Case Farms refused the Union's request to bargain by correspondence dated December 29, 1995. Pursuant to a refusal to bargain charge filed by the Union on January 8, 1996, the NLRB's General Counsel issued a Complaint on January 17, 1996, alleging that Case Farms had violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain. Case Farms filed an Answer admitting that it had refused to bargain but denying that the Union had been properly certified. On February 9, 1996, the General Counsel filed a motion for summary judgment. On February 27, Case Farms filed a response *4 admitting its refusal to bargain with an improperly certified union. By Decision and Order dated March 7, 1996, the Board granted the General Counsel's motion for summary judgment and ordered Case Farms to bargain on request with the Union. Case Farms petitions for review of the Board's final order. STATEMENT OF FACTS Case Farms of N.C., Inc., (“Case Farms”) operates a poultry processing plant at Morganton, N.C. The work force at the Morganton plant is overwhelmingly Hispanic. Indeed, fully 80% of the 514 employees eligible to vote in the July 12, 1995 election were Hispanic. (App. 61.) 1 Approximately 90% of the Hispanic employees are from Guatemala and most of the remaining 10% are from Mexico. (App. 61.) More than 70% of the Hispanics (i.e., over 350 voters) are aliens who have spent little time in the U.S. (App. 62.) During the week of May 15, 1995, approximately 200 Hispanic employees (mostly Guatemalan) engaged in a work stoppage to protest a series of work-related complaints. (App. 62, 67, 75-76, 129.) The media attention from the May 15 stoppage apparently caught the attention of the Laborers' Union. On May 20, Laborers' International Representative Yanira Merino flew to North Carolina from her home in California to direct the Laborers' organizing campaign at Case Farms. (App. 244.) Ms. Merino is a native of San Salvador. (App. 243.) She has been in the United States for five *5 years. (App. 243-244.) Ms. Merino acknowledged that one of the reasons she was selected to direct the organizing campaign at Case Farms was that she speaks fluent Spanish. (App. 269-270.) in addition to Ms. Merino, the Union imported six Spanish-speaking organizers from Illinois, California, and Washington, D.C. (App. 226-228.) All six identifiable members of the Union's in-plant organizing committee were Guatemalan aliens. (App. 65.) The Union used a Spanish version of each handout and at least one handout was exclusively in Spanish. (App. 262.) The Union held allHispanic meetings and the organizers attended all-Hispanic events. (App. 234, 239.) Given the demographics of the work force, it is understandable that the Union centered its campaign upon the Hispanic voters. Unfortunately, however, the Union elected to take advantage of the fact that over 350 Hispanic aliens were highly vulnerable to misrepresentations. As Case Farms employees were leaving the plant on the afternoon of Friday, July 7, 1995, the Union distributed a flyer which was carefully crafted to instill fear among Hispanic voters. (App. 20.) in a cynical effort to prey upon the inability of Hispanic aliens to verify the truth or falsity of events which occurred hundreds of miles away, the Union's handout falsely proclaimed in both Spanish and English: IN OHIO, TWO YEARS AGO CASE FARMS FIRED THE ENTIRE AMISH WORK FORCE, AND REPLACED THEM WITH LATINOS. THEY DID THIS TO THE AMISH AFTER YEARS OF LOYAL SERVICE. WHY? BECAUSE THEY COULD PAY LATINOS LESS AND TREAT THEM WORSE. *6 HOW ARE WE GOING TO PREVENT CASE FARMS FROM TREATING US LIKE THE AMISH? © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... (Company Exhibit #1, App. 20, 304.) The Union's claim that Case Farms “fired the entire Amish work force” in Ohio is totally false! The record evidence is uncontroverted that Case Farms did not fire a single Amish employee but, instead, tried very hard to stem the tide of voluntary attrition among its Amish employees in Ohio! In January, 1987, Case Farms acquired a poultry processing plant in Winesburg, Ohio. (App. 21.) Winesburg is located in rural Holmes County. (App. 20.) When Case Farms acquired it, the Winesburg plant had about 160 employees, 62 of whom were Amish. (App. 21.) The vast majority of the Amish employees were young females between 17 and 20 years of age. (App. 21.) The Amish fathers exercised strict control over their daughters. (App. 21.) The fathers decided whether their daughters would be permitted to take jobs off the farm. The children's paychecks were turned over to the fathers who exercised total dominion over how long the children could continue working at a facility such as Case Farms. (App. 22.) The Amish seek to live a highly religious, family-centered life which they zealously protect from outside influences. (App. 24.) They go to great lengths to maintain a separation from “worldly” matters. (App. 23-24.) One manifestation of this is the absence of electricity and telephones in their homes and the use of horse-drawn buggies in lieu of cars or trucks. (App. 24.) When Case Farms took over the Winesburg facility in January, 1987, the approximately 100 employees who were not Amish were *7 farmers from Holmes County. (App. 24.) More to the point, most of the 100 non-Amish workers shared a common religious bond with the Amish because they were members of the Mennonite faith. (App. 24.) The Mennonite Church spawned the Amish sect in the 1700s and the Mennonites are only slightly more liberal than the Amish in separating themselves from “worldly” conveniences. (App. 24-25.) The Amish fathers were comfortable with the composition of the work force to which their young daughters were exposed so long as their fellow workers were rural Mennonites. Unfortunately, that changed. In 1988, Case Farms expanded the Winesburg facility and the number of hourly employees grew from 160 to about 375. (App. 26.) The 200 new hires did not come from the farms of Holmes County and were not Mennonites. Instead, they came out of Ohio cities and had factory (rather than rural) backgrounds. (App. 26-27.) The Amish fathers found the urban newcomers objectionable because of such things as coarse slogans on t-shirts, vulgarity in conversations, and “necking” in the parking lot. (App. 27.) As a result, Case Farms experienced significant attrition of its Amish employees following the influx of the urban workers. By the end of 1989, the number of Amish had dropped from 62 to 20. By the end of 1990, only 11 Amish remained; and by the end of 1992, only 2 of the 62 Amish were employed at Winesburg. (App. 28.) The attrition of the Amish was wholly voluntary--not a single Amish employee was fired! (App. 28.) The Amish were excellent employees who demonstrated a strong work ethic. (App. 24.) Instead of “firing” the Amish (as the Union falsely charged), Case Farms made significant efforts to *8 retain its Amish employees after the attrition began in 1988. (App. 28-29.) Former Winesburg general manager Leroy Cook described his efforts to stem the tide of Amish attrition: Q. [MR. GOLD] What did the Company do? A. [MR. COOK] I personally visited several Amish fathers and Amish bishops in their barns, in their homes, in the middle of their fields asking them to permit their young children to work at our processing plant. (App. 53.) Case Farms' director of human resources Ken Wilson traveled to Ohio from North Carolina in an effort to persuade Amish Bishop Beache to assist the Company in its effort to retain Amish employees. (App. 66.) Mr. Cook testified © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... without contradiction that Case Farms “sought to gain back Amish employees because we didn't want to lose them.” (App. 29.) The Amish fathers told Mr. Cook that they “didn't want their young daughters exposed to the worldly environment and that's why they would not permit them to work.” (App. 29.) Like Mr. Wilson, Mr. Cook met with Amish clergy who explained that the Amish were determined to “shield their children” from situations they perceived as unwholesome. (App. 29.) Notwithstanding Case Farms' efforts, the Amish elders withdrew permission for the children to work at Case Farms. (App. 29-30.) The Union's assertion that Case Farms “fired the entire Amish work force” is blatantly false. Their contention that the Amish were “replaced ... with Latinos” is equally false. There were no Latinos or Hispanics among the 200 employees hired to staff Winesburg's expanded facilities in 1988 and 1989. (App. 32.) Case Farms hired a handful of Latinos at Winesburg in 1993 but it was *9 not until 1994 that significant numbers of Latinos were hired at Winesburg. (App. 32.) However, by 1994 there were only two (2) Amish employees left. (App. 32.) More to the point, the record evidence is uncontroverted that the Union's statement that the Latinos were paid less or otherwise treated worse at Winesburg is also totally false. (App. 34-35.) The testimony of the Union's chief organizer (Yanira Merino) makes it crystal clear that the Union elected to accuse Case Farms of the industrial equivalent of “ethnic cleansing” with reckless disregard for the truth: Q. [MR. HILLER] Now, your handout says in Ohio two years ago Case Farms “fired the entire Amish work force.” Tell us your factual basis for that statement. A. [MS. MERINO] Okay, this leaflet was produced by Marc Panapinto, and ... he got that information out of Mr. John ... who worked in Ohio for the [United Food & Commercial Workers Union]. 2 Q. And do you know whether Mr. Panapinto, or anyone else in the Laborer's Organization, did anything to check out the accuracy of that statement? A. No, I don't know about that. Q. Now, you sat yesterday and listened to Mr. Cook's description of why the Amish left Case Farms' Winesburg facility in Ohio, did you not? A. Yes, I was here. Q. And today, do you have any factual basis for disagreeing with what Mr. Cook said yesterday? *10 A. That I would disagree about what he said yesterday? Q. Do you have any proof today that Case Farms fired the entire Amish work force in Ohio two years ago, or at any time? ANo, I don't have any proof of that. Q. Do you have any factual support for your claim in this handout that Latinos were paid less at Winesburg than other employees? A. No, I don't have any proof of that. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... (App. 275-279.) The Union did not produce one word of record evidence to support its irresponsible assertions that Case Farms “fired” the Amish and mistreated Hispanics in Ohio. The Union apparently expected Case Farms' Hispanic employees to verify the “ethnic cleansing” allegation for themselves. As we shall see, the inability of non-English-speaking aliens to verify events which occurred hundreds of miles away in a strange country is at the very core of this case. SUMMARY OF ARGUMENT I. THE LABORERS' EFFORT TO EXPLOIT ETHNIC FEARS. The Laborers' use of campaign misrepresentations to exploit ethnocentric fear among Hispanic voters virtually mirrors the Board's recent decision in Zartic, Inc., 315 NLRB 495 (1994). In Zartic, the Union created a “volatile atmosphere” by publishing unflattering remarks about Hispanics and then injected into that volatile atmosphere a misrepresentation which was forseeably likely to cause fear among Hispanic voters. The Board found that the Union's “intent” was to exploit ethnic fears and that the “likely *11 effect” of the Union's misconduct was to destroy the laboratory conditions for an election. The Laborers did precisely the same thing at Case Farms. However, both the Board and its Hearing Officer failed to apply Zartic's “intent” and “likely effect” analysis to the Laborers' misconduct. Indeed, the Hearing Officer excluded a raft of lay opinion testimony which was both admissible under Fed. R. Evid. 701 and highly probative concerning the “likely effect” of the Laborers misrepresentations upon Case Farms' Hispanic voters. Finally, the Board utterly failed to explain its deviation from Zartic. III. THE CUMULATIVE EFFECT OF THE LABORERS' MISCONDUCT. The Laborers misconduct was not confined to the use of misrepresentations to exploit ethnic fear. Case Farms' objections to conduct affecting the July 12, 1995 election also included the following: • The Union threatened to cause the Immigration & Naturalization Service (“INS”) to investigate Case Farms' Hispanic workers if the Union lost the election. (Objection #2.) • The Union threatened to disclose the names of employees who sought to revoke their authorization cards. (Objection #4.) • The Union created an atmosphere of fear and intimidation through blatant menacing of non-supporters. (Objection #6.) • The cumulative effect of the Union's misconduct was to destroy the laboratory conditions for an election by depriving Case Farms' employees of an uncoerced choice. (Objection #7.) (App. 16.) The Hearing Officer erroneously treated each objection as a “stand-alone” issue and made no effort to assess the cumulative impact of the objectionable conduct. See *12 Swing Staging, Inc., v. NLRB, 994 F.2d 859, 863 (D.C. Cir. 1993) (citations omitted) (“[T]he Regional Director failed to assess the cumulative impact of the alleged episodes. The Board is required to make an ‘overall judgment as to whether the atmosphere in the plant ... was so poisoned’ as to materially impair the election results. Instead, the Regional Director analyzed each objection solely in isolation.”). ARGUMENT © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... I. INTRODUCTION. Section 9(c) of the National Labor Relations Act, 29 U.S.C. §159(c), charges the National Labor Relations Board with the responsibility of conducting secret ballot elections to determine whether employees wish to designate a labor union as their agent for collective bargaining. “In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.” General Shoe Corp., 77 NLRB 124, 127 (1948). it is well settled that the requisite “laboratory conditions” are destroyed when a union creates an atmosphere of fear or coercion. See Electronic Components Corp. v. NLRB, 546 F.2d 1088 (4th Cir. 1976); Q. B. Rebuilders, Inc., 312 NLRB 1141 (1993) (Hispanic alien voters coerced by threat to cause INS raid if union lost election); and Crown Coach Corp., 284 NLRB 1010 (1987) (union's deportation threat had a coercive impact upon Hispanic alien voters). *13 II. STANDARD OF REVIEW. This case asks whether the Board abused its discretion in certifying the Laborers notwithstanding the Union's blatant effort to generate ethnocentric fear. Ordinarily, a party seeking to set aside the results of a Board-supervised election must show “not only that unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election.” Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 1989). When, however, one of the contestants elects to invoke racial, ethnic, or religious themes, “[t]he party making the racially-based statements has the burden of demonstrating that the statement was ‘truthful and germane.’ Any doubts are to be resolved in favor of the objecting party.” Carrington South Health Center v. NLRB, 76 F.3d 802 (6th Cir. 1996). See also KI (USA) Corp. v. NLRB, 35 F.3d 256, 258 (6th Cir. 1994) (citing Sewell Mfg. Co., 138 NLRB 66 (1962)). III. THE NATIONAL LABOR RELATIONS BOARD ERRED IN CERTIFYING THE RESULTS OF THE ELECTION IN LIGHT OF THE UNION'S PUBLICATION OF BLATANT MISREPRESENTATIONS WHICH WERE INTENDED, AND HAD THE LIKELY EFFECT, OF GENERATING FEAR AMONGST HISPANIC VOTERS A. The Union's Use of Misrepresentations to Exploit Ethnic Fears. The Laborers' use of misrepresentations to generate ethnocentric fear among non-English-speaking Hispanic aliens virtually mirrors the Board's recent decision in Zartic, Inc., 315 NLRB 495 (1994). Zartic involved an election in two poultry processing plants in Rome, Georgia. There were 544 voters. About 50% of the voters at one plant and at least 75% of the voters at *14 the second plant were Hispanic immigrants, most of whom could not read or speak English. The Union created a volatile atmosphere among Hispanic voters by disseminating certain unflattering remarks about Hispanics and then injected into that atmosphere a blatant misrepresentation which was foreseeably likely to generate ethnicbased fear. Specifically, the Union obtained a tape recording of remarks by a manager named Mayes who repeated remarks allegedly made by former plant manager Gaulin. Gaulin's remarks were, to say the least, unflattering to Hispanic employees, to wit: According to Mayes, Gaulin said, “[Y]ou got to push these people. It's hard for these people to sleep on the floor of a trailer that ain't got no damn electricity. They're the closest things to animals they could be. He said, you've got to treat them that way.” Id., at 495. About a week before the election (January 29), the employer held a “captive audience” speech. The vast majority of attendees were Hispanic. Following the Company's presentation, a disturbance ensued when one of the Union supporters asked about Gaulin's unflattering remarks. Although the dissemination of the tape was not grounds © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... to set aside the election (because the Union truthfully attributed the unflattering comments to a management official), the Board found that the January 29 disturbance “created a volatile atmosphere in the campaign.” Id., at 497. Within the “charged environment” created by the January 29 disturbance, the Union in Zartic injected the “big lie” in an effort to generate ethnocentric fear among Hispanic voters. Specifically, the Union falsely suggested a connection between the employer and Ku Klux Klan violence which had occurred a decade earlier at another of the Company's plants in another city. The *15 Union passed out portions of two newspaper articles, the first showing Klansmen picketing the employer's plant and the second reporting on the mysterious death of an Hispanic employee. The Union supplemented the newspaper articles with oral statements falsely suggesting that: (a) the Company had rendered financial assistance to the KKK; and (b) the KKK had murdered the Hispanic employee. The truth of the matter was that rather than acting at the behest of the Company, the KKK was protesting the Company's employment of Hispanics and, rather than providing financial support to the KKK, the Company had obtained an injunction restraining the KKK. Id., at 497. The analytical test set forth by the Board in Zartic, supra, was whether the “intent” and “likely effect” of the Union's misrepresentation was to frighten Hispanic voters: ... in KI (USA) Corp., 309 NLRB 1063 (1992), we established an analytical approach for Sewell issues: we will assess the “intent of the party accused of the relevant misconduct as well as its “likely effect on unit employees in question,” for the purpose of ascertaining “whether this conduct so clouded the election atmosphere as to require the election to be set aside.” KI (USA), supra, at 1064, 1065. Id., at 497. Applying this test, the Board found that “the Union's intent was to exploit the ethnic fears of the Hispanic employees by making a visceral connection between the KKK and working conditions.” Id., at 498. The Board also found that the “likely effect” of the Union's misconduct was to destroy the “laboratory conditions” for an election. Specifically, the Board pointed to the coalescence of the KKK misrepresentation and the “volatile *16 atmosphere already existing in the campaign because of the Union's use of the [Gaulin] tape.” Id., at 498. In summary, Zartic involved the publication of unflattering remarks about Hispanics followed by a blatant misrepresentation which was foreseeably likely to cause fear among Hispanic voters. Precisely the same fact pattern obtains here! Case Farms' election was held on Wednesday, July 12, 1995. On the prior Friday (July 7), two events occurred which mirror the facts of Zartic. The first was the creation of a volatile atmosphere by the Union's publication of unflattering remarks about Hispanics and the second was the injection into that atmosphere of the blatant misrepresentation that Case Farms had engaged in “ethnic cleansing” of the Amish and the suggestion that the Company would do likewise to Hispanic employees in North Carolina. The Laborers created a volatile atmosphere on July 7 by broadcasting unflattering remarks about Hispanics. When she finished her shift on Friday, July 7, Case Farms' production employee Jesyka Martinez encountered Yanira Merino and other Union organizers passing out literature at the plant gate as the day shift was leaving the plant. (App. 169, 220-221.) Yanira Merino described her confrontation with Jesyka Martinez as follows: A. [MS. MERINO] The first thing [Jesyka] started to saying was ... that the Union only cared about the [dues] money. I asked her to stop, because she was confusing the workers, ....... At that time, more workers were coming out, so workers were gathering around us.... (App. 250-251.) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... *17 Chief organizer Yanira Merino acknowledged that the crowd which gathered to witness her confrontation with Jesyka Martinez was comprised of Guatemalans and Mexicans. (App. 263.) Knowing full well that the onlookers were Hispanic, Ms. Merino decided to play on ethnic sensitivities: A. [JESYKA MARTINEZ] ... People started coming out.... [Yanira] told the people that I had said that they were just a bunch of lazy bastards. Q. [MR. HILLER] Referring to the Hispanic employees? A. Right. She told them all in Spanish. She told them ... that I was ... speaking evil of them, saying that they were just a whole bunch of lazy bastards, they didn't want to do anything. Q. What else did she say? A.... she told me that I was just prejudiced against all Spanish people, okay. Q. And what did you tell her? A. I told her that I was Spanish myself, that I was of Salvadorian descent and that I was married to a Mexican and that didn't seem to me like I was prejudiced. So then, that's when she called me a traitor.... That how could I do that, to trade my own people.... Q. Now, when this occurred, were there Hispanic employees who heard this confrontation? A. Yes, most of them were Hispanic. Q. And can you estimate for us how many people were there when this occurred? A. All the people from front half, and whole bird which is about two hundred and seventy to three hundred (270-300) people that come out at that particular time. Q. Did it cause something of a ruckus or a-*18 A. Yes. The police came out that day. (App. 169-171.) Union Organizer Elias Martinez acknowledged that he and Yanira Merino succeeded in energizing ethnically-based resentment: Q. [MR. HILLER] Now, you indicated that at some point during the confrontation with Jesyka on July 7th, Jesyka and Yanira got into some sort of verbal exchange where Yanira accused Jesyka of referring to the Guatemalans as “lazy bums,” or something to that effect. Is that right? A. [MR. MARTINEZ] That's correct. Q. And you said there were a lot of workers congregating around when this happened? A. Yes. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... Q. Now, you said that some of these workers got upset with Jesyka after these comments had been repeated to them. Correct? A. That's correct. Q. They were upset that they were characterized by their ethnic origins as having some sort of bad traits, or something. Right? A. I believe so. Q. Isn't it a fact, Mr. Martinez, that the gist of the workers' comments to Jesyka were to the effect they didn't appreciate her mischaracterizing people from their country? A. They didn't appreciate her making the [lazy bums] comment that she had mentioned. Q. And her comment was essentially an ethnic comment, wasn't it? A. Yes. *19 Q. I take it that the assembled employees [were] mostly Hispanic and, when they talked to Jesyka, they talked in Spanish? A. Yes, mostly Guatemalans. Q. Mostly people of the same ethnic background that Jesyka had allegedly slandered. Right? A.... they were all Guatemalans that were out there. Q. And after this confrontation between Jesyka and Yanira on July 7th, you said that the Police escorted Jesyka to her car, whereupon she departed. A. That's correct. (App. 229-236.) The question is not whether Jesyka Martinez made unflattering remarks about Guatemalan workers. The issue is whether the Union seized upon her alleged comments to stir up ethnic sensitivities-- just as the Union in Zartic seized upon Plant Manager Gaulin's unflattering remarks about Hispanics. in that regard, Yanira Merino admitted that she accused Jesyka of “look[ing] down at these people.” (App. 252.) However, Ms. Merino lost credibility when she denied that she intended to stir up ethnic sensitivities: Q. [MR. HILLER] When you had your confrontation with Jesyka Martinez on July 7th, ... [y]ou accused her of “looking down at these people,” right? © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... A. [MS. MERINO] Yes. Q. And when [you] said that she looked down at these people, you ... were referring to the Guatemalans and Mexican people. Right? A.... yes. *20 Q. And there were a number of Guatemalan and Mexican employees looking on when you made that comment, right? A. We had workers gathered around us. Q. Did you not understand my question? I asked you if they were Guatemalan and Mexican? Were they? A. Yes. Q. And you recognized when you accused her of “looking down” at them and said that she had called them “lazy bums” that the Hispanic workers who were present would be offended, did you not? A. Was I what? Q. When you accused Jesyka of “looking down at these people,” and when you accused her of calling Guatemalan and Mexican workers “lazy bums,” did you think that ... the Hispanic employees who heard you were going to have a positive, or a negative, impression of Jesyka as a result of your remarks? A. I did not know what kind of effect my remark was going to have on them. Q. You didn't know? A. No. Q. How these Hispanic employees were going to take it? A. No, sir. Q.... what was your purpose in saying what you said? What did you intend its effect to be with the audience of Hispanic employees? Did you intend for them to think well, or poorly, of Jesyka as a result of the characterizations you had made about her in their presence? A. I didn't intend to create any positive, or negative, impression of Jesyka [with] the rest of the workers. *21 (App. 262-266.) After the Hispanic crowd turned on Jesyka Martinez, it required six police cruisers to quell the commotion and escort her from the scene. (Co. Ex. #11 and App. 232.) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... Just as the Union in Zartic, supra, created a “volatile atmosphere” by dredging-up the unflattering remarks of Mr. Gaulin at the “captive audience” speech, the Laborers created an ethnic tinderbox by seizing upon Jesyka Martinez' unflattering remarks. And just as the Union in Zartic, supra, used blatant misrepresentations to generate ethnic fear, the Laborers blatantly misrepresented that Case Farms had purged its Amish employees in a transparent effort to instill fear among Hispanic voters. The Amish flyer was distributed the very same day as the disturbance involving Jesyka Martinez. B. The “Intent” and “Likely Effect” of the Union's Misrepresentation Was to Generate Fear Among Hispanic Voters. Zartic, supra, teaches that the appropriate analytical approach is to assess the “intent” and “likely effect” of efforts to engender fear among non-English-speaking Hispanic aliens. Unfortunately, neither the Hearing Officer nor the NLRB made any attempt to apply either of these analytical yardsticks. However, the Laborers' “intent” is apparent from the verbiage of the July 7 handout: IN OHIO, TWO YEARS AGO, CASE FARMS FIRED THE ENTIRE AMISH WORKFORCE AND REPLACED THEM WITH LATINOS. THEY DID THIS TO THE AMISH AFTER YEARS OF LOYAL SERVICE. WHY? BECAUSE THEY COULD PAY LATINOS LESS AND TREAT THEM WORSE. *22 HOW ARE WE GOING TO PREVENT CASE FARMS FROM TREATING US LIKE THE AMISH? The Union's thinly-veiled message was obvious: • The laws of the United States did not prevent Case Farms from successfully engaging in the industrial equivalent of “ethnic cleansing” of a religious sect in Ohio. • Absent Union protection, Case Farms will engage in a similar purge of Hispanics in North Carolina. What possible purpose could the Union's misrepresentations have had other than to place Hispanics in fear that they would suffer the same fate as the Amish (i.e., that the laws of the U.S. would afford them no greater protection that was afforded to the Amish)? Instead of trying to explain the Union's purpose in making this misrepresentation, Yanira Merino had the audacity to deny that the Amish handout was aimed at “Latinos”: Q. [MR. HILLER] Do you see at least two references to “Latinos” in this handout? A. [MS. MERINO] Yes. Q. And notwithstanding those two references to “Latinos,” your testimony today is that this handout was not aimed at seeking to influence the Latino employees at Case Farms? A. Exactly. HEARING OFFICER LANE: Pardon. THE WITNESS: © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... I said it was not aimed for the Latino workers. (App. 275.) Suffice it to say that there is not one scintilla of record evidence suggesting a proper purpose for the Laborers' misrepresentation. There is record evidence, however, that the *23 handout played to a known fear shared by the Hispanic voters. During the May 15 work stoppage, Case Farms hired several replacement employees. As a result, the Hispanic employees were fearful about being replaced. (App. 281.) The testimony of chief organizer Yanira Merino demonstrates that the Union knew of, and preyed upon, this fear by suggesting in the July 7 handout that Case Farms had hired Latinos to “replace” the Amish in Ohio and implied that the same thing would happen to the Latinos in North Carolina: Q. [MR. HILLER] Now, Ms. Merino, I believe you testified that you arrived on the scene May 20th? A. [MS. MERINO] Yes. Q. And there had just been a work stoppage a few days earlier. Correct? A. Yes. Q.... When you learned about the May 15th work stoppage ... did you also learn that during the work stoppage Case Farms had hired several Mexican employees? A. I know we received information that Case Farms have [sic] hired new employees, but I don't remember that somebody mentioned their country of origin. Q. Okay, and you knew that the Guatemalan employees were very concerned about the hiring of those replacements. Correct? A. The people with whom I met, yes, they were concerned. Q.... when you published the Amish handout, you knew that the Guatemalan employees had been concerned about being replaced by other employees during the May 15th work stoppage. Correct? *24 A. I knew the workers at Case Farms were concerned about Case Farms hiring new employees. (App. 280-281.) At the risk of stating the obvious, the Laborers' “intent” in falsely accusing Case Farms of having purged a religious minority in Ohio was to create fear among Hispanic voters that the same fate would befall them absent the protective mantle of the Union. The Hearing Officer's report and the Board's summary affirmance thereof will be searched in vain for any indication of a proper motive on the part of the Laborers. The author of the misrepresentation that Case Farms had “fired” its Amish employees and mistreated Latino employees in Ohio was Marc Panapinto. (App. 237.) Mr. Panapinto directed the Laborers' organizing campaign from his office at LIUNA headquarters in Washington. (App. 260-261.) Mr. Panapinto would have been the logical person to testify © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... regarding the Laborers' “intent” in publishing the “Amish” flyer. For reasons which will forever remain a mystery, the Union did not call Mr. Panapinto as a witness. Without so much as noting Mr. Panapinto's glaring absence from the witness stand, the Hearing Officer's Report (App. 334) implicitly faults Case Farms for failing to call as witnesses the six (6) Morganton policemen who were summoned to quell July 7 the disturbance following the confrontation between Yanira Merino and Jesyka Martinez. In a word, the Hearing Officer utterly failed to place the risk of non-persuasion upon the Laborers concerning the “intent” and the “likely effect” of their effort to instill ethnic fear. See Carrington South Health Center, Inc., v. NLRB, 76 F.3d 802 (6th Cir. 1996) (“The party making the racially-based *25 statements has the burden of demonstrating that the statement was ‘truthful and germane.’ Any doubts are to be resolved in favor of the objecting party.”). Turning from the Union's “intent” to the second prong of the Zartic test, what was the “likely effect” of the Laborers' misrepresentation? The “likely effect” of any campaign misrepresentation is closely linked to the voters' ability to evaluate its truth or falsity. When assessing campaign misrepresentations made to the typical American workforce, the Board generally adopts a caveat emptor approach which assumes that voters are “mature individuals who are capable of recognizing campaign propaganda for what it is.” Midland National Life Ins. Co., 263 NLRB 127, 132 (1982). However, as implicitly recognized in Zartic, supra, the Board's caveat emptor approach has its limits when the electorate is overwhelmingly comprised of non-Englishspeaking aliens. Could 350 non-English-speaking Guatemalan aliens in North Carolina readily verify whether Case Farms had “fired” a religious minority in a far-away place called Ohio? Would they know whether the laws of the United States would protect them from a similar fate? The Hearing Officer's report and the Board's decision totally ignore the “likely effect” of the Laborer's misrepresentation. However, the record evidence presented by Case Farms demonstrates that these non-English-speaking alien voters were ill-equipped to evaluate the truth or falsity of the misrepresentations. Hector Reyes was born in Dorado, Puerto Rico and lived in Puerto Rico for 13 of his first 17 years. (App. 148.) His first *26 language is Spanish. (App. 148.) Reyes served 12 years as a Navy Seal and saw combat in Grenada. (App. 148.) Because he was Case Farms' only bilingual supervisor, Reyes was installed as training manager when he came to Morganton. (App. 150.) He held that position for ten months prior to the election. During his 10-month tenure as training manager, Mr. Reyes spent more than 50% of his time functioning as an “intermediary” for Case Farms' Hispanic employees. (App. 150.) On a daily basis, Mr. Reyes inter-acted with Case Farms' Hispanic employees regarding problems they were having with housing, public utilities, insurance, and medical treatment. (App. 150-151.) Reyes is now the deboning manager where he exercises daily supervision over 120 employees, 95% of whom are Guatemalan. (App. 147-148.) He is also a member of the Hispanic Forum, a civic association which assists Hispanics to adjust to American life. (App. 151.) Mr. Reyes testified that the educational level of Case Farms' Hispanic employees is very low. (App. 154.) Because they cannot understand English, they cannot read U.S. publications or understand U.S. news reports. (App. 154.) Consequently, the Hispanic employees do not understand the protections afforded by U.S. laws. (App. 154.) Hispanic employees' ignorance of the protections afforded by U.S. law can be illustrated by their tendency to horde cash in boxes rather than deposit it in banks. (App. 152-153.) When Guatemalan banks failed, Guatemalan depositors usually lost their money. (App. 153.) The Hispanic employees did not trust U.S. banks because they did not understand *27 that U.S. law requires that all bank deposits be federally insured. (App. 153-154.) Jaime White is originally from Panama and is certified by the State of North Carolina as a Spanish interpreter. (App. 120.) Mr. White operates a business called Migrant Assistance of Morganton where he acts as an interpreter and facilitator for Hispanics in their dealings with the courts, medical providers, insurance companies, and the INS. (App. 118-119.) For over three years Mr. White has provided services to Case Farms' Hispanic employees. (App. 121, 139.) On average, he spends six (6) hours a day, six days a week, with Case Farms' Hispanic employees. (App. 121.) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... Mr. White agreed with Mr. Reyes that Case Farms' Hispanic employees are not well educated, do not understand the English language, and therefore, do not understand U.S. media or publications, and “do not know the law of the United States.” (App. 130, 122, 138-139, 141.) Illustrative of the latter is the fact that various case Farms' Hispanic employees failed to understand that they could prosecute assault charges against U.S. citizens notwithstanding their status as aliens. (App. 131, 139-140.) Query: if they assumed that aliens were somehow disqualified from filing assault charges against U.S. citizens, is it reasonable to assume that Case Farms' Hispanic employees believed that the laws of the U.S. would afford them more protection against arbitrary termination than the Amish (who are U.S. citizens)? The Union did not offer one word of testimony regarding the “likely effect” of its misrepresentation. Instead of trying to *28 refute Case Farms' evidence that its Hispanic employees lacked understanding of the protections afforded them by U.S. laws, head organizer Yanira Merino acknowledged that the Union took pains to educate Case Farms' Hispanic employees about their NLRA rights because “[t]hey didn't know English and they didn't know the laws of the United States.” (App. 260.) Ms. Merino failed to explain how these same Hispanic voters could verify whether the laws of the United States would permit Case Farms to treat them in the same arbitrary manner as the Amish had allegedly been treated in Ohio. Moreover, the Union stipulated that “many Guatemalan workers fled Guatemala under difficult circumstances, including the civil war, fleeing poverty, and many came to the United States seeking political asylum. They were used to exposure to different kinds of atrocities that have been committed against them, including guerilla rebels, government forces, and others in Guatemala.” (App. 126.) it would stand to reason that people who are accustomed to being abused in their native country would be uniquely susceptible to predictions of further abuse in a foreign country whose laws they do not understand. The bottom line is that the Union failed to offer a scintilla of evidence concerning either the “intent” or “likely effect” of its false accusation that Case Farms had purged the Amish and accorded secondclass treatment to Hispanics in Ohio. C. The Hearing Officer Improperly Excluded Evidence Relevant to the “Intent” and “Likely Effect” of the Union's Misrepresentations. At the hearing, Case Farms provided the Hearing Officer with a copy of the Board's Zartic decision and a memorandum of law *29 setting forth Zartic's “intent” and “likely effect” analytical framework: HEARING OFFICER LANE: I have considered your memorandum. I did read it and I read the section concerning the case that sets forth the two (2) criteria, one of those being the likely effect. Do you have a copy of the complete case? MR. AGRAZ: Yes, I do. HEARING OFFICER LANE: Zartic, I guess it is. Z-A-R-T-I-C? MR. HILLER: That's correct. HEARING OFFICER LANE: I'd like to take a ten (10) minute recess and review the case. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... (App. 136-137.) Notwithstanding the fact that she was fully appraised of the Zartic test, the Hearing Officer proceeded to exclude a great deal of evidence which was obviously relevant to the “intent” and “likely effect” issues. Regarding the Laborers' ‘intent,” the Hearing Officer refused to permit Case Farms to cross-examine the Union's head organizer Yanira Merino on the subject of whether the Union expected non-English-speaking Hispanic aliens in Morganton, N.C. to ascertain for themselves what had really happened to the Amish in Winesburg, Ohio: Q. [MR. HILLER] Did you expect Case Farms employees to check out for themselves the accuracy of what had happened to the Amish in Ohio? MR. GOLD: Objection--how is her expectation relevant? ... *30 MR. HILLER: I'm trying to find out whether [the Union] did anything to check out the accuracy of this accusation that they made against the Company or whether they simply expected the employees to check it out for themselves.... HEARING OFFICER LANE: I'm going to sustain the objection. (App. 276-277.) Regarding the “likely effect” of the Laborers' misrepresentations, the Hearing Officer excluded a raft of highly relevant testimony which was admissible under Fed. R. Evid. 701. Rule 701 3 allows opinion testimony by lay witnesses so long as the testimony is based on the personal knowledge of the witness: We recognize that in the past lay witnesses may have been considered incompetent to express opinions .... [Citations omitted.] in recent years, however, a liberalization of Rule 701 regarding lay opinion testimony has occurred.... [T]he modern trend favors the admission of opinion testimony, provided it is well-founded on personal knowledge and susceptible to cross examination. U.S. v. Pavia, 892 F.2d 148, 157 (1st Cir. 1989). Accord: Teen-Ed, Inc., v. Kimball Intern, Inc., 620 F.2d 399, 403 (3rd Cir. 1980) (a lay witness is permitted under Fed. R. Evid. 701 to offer an opinion on the basis of relevant ... facts that the witness has perceived). As noted above, Hector Reyes spent more than 50% of his time for ten (10) straight months acting as an “intermediary” for Case *31 Farms' Hispanic employees regarding problems they were having with housing, public utilities, insurance, and medical treatment. (App. 150-151.) Yet, the Hearing Officer refused to permit Mr. Reyes to testify regarding his perception of the practical problems which Case Farms' non-English-speaking aliens would encounter in trying to ascertain the truth or falsity of the Laborers' misrepresentation regarding the alleged purge of a religious minority in Ohio: Q. [MR. HILLER] Based upon your daily exposure to Case Farms' Guatemalan employees, what practical problems would the Guatemalans encounter in evaluating whether a minority group could be subjected to massive employment discrimination in this country? MR. GOLD: © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... Objection. Again, the question asks the witness to speculate about the opinions or reactions of unnamed people to a hypothetical situation. MR. HILLER: I don't believe that was the question, Your Honor. I believe I asked him what practical problems they would encounter-not what was in their minds. HEARING OFFICER LANE: Can you restate the question or do you want it played back? Q. [MR. HILLER] Mr. Reyes, I'm going to hand you what has been marked for identification as Company Exhibit 1 and ask that you read that. Now, you'll see in there that the Union makes an assertion that Case Farms fired an entire religious minority in the State of Ohio, do you see that? A. Yes, sir. MR. GOLD: Objection.... *32 HEARING OFFICER LANE: ... It doesn't say anything about a religious minority--you're characterizing it as such and ... that document doesn't say anything close to what ou just said. MR. HILLER: You don't consider the Amish a “religious minority?” HEARING OFFICER LANE: I'm not interpreting the document [at] this time.... Q. [TO MR. REYES] ... Do you see where the document, handed out by the Union, says, “In Ohio, two (2) years ago, Case Farms fired the entire Amish work force.” Do you see that? A. [MR. REYES] Yes, sir. Q. Now, my question is, in light of that statement, what practical problems would the Guatemalans have in trying to find out whether Case Farms, in fact, fired all their Amish workers in Ohio? What practical problems would they encounter? MR. GOLD: © 2016 Thomson Reuters. No claim to original U.S. Government Works. 18 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... Objection.... MR. HILLER: I'm asking him about the barriers for a non-English speaking person, who hasn't been in this country very long, to try to ... verify whether Case Farms did this horrible thing hundreds of miles away to a religious minority up North. What “practical problems” would they encounter? That's what I'm asking him for. He's exposed to these people every day. HEARING OFFICER LANE: ... I'm going to sustain the objection. MR. HILLER: All right, I'm going to proffer his answer. HEARING OFFICER LANE: ... You're doing an offer of proof, is that correct? MR. HILLER: Yes. *33 HEARING OFFICER LANE: All right. MR. HILLER: I'm going to state that if permitted to answer Mr. Reyes would have said that if you put yourself in their shoes, people who have not been in this country very long, people who do not speak the language, people who do not have contacts hundreds of miles away, people who do not understand English news broadcasts, that they have no practical ability to determine whether that statement, in Exhibit No. 1, is a bald face lie. My next question to Mr. Reyes is as follows: Q. You have had exposure now to an Hispanic, predominately Hispanic, work force in Morganton, North Carolina and a non-Hispanic work force at both Fayetteville, North Carolina and Rocko, North Carolina. Could you describe the differences between the American work force's ability to evaluate the truth or falsity of Union propaganda and the work force that you now supervise in Morganton, North Carolina? MR. GOLD: Objection. HEARING OFFICER LANE: Sustained.... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 19 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... (App. 154-158.) The exclusion of Mr. Reyes' testimony concerning the “likely effect” of the Laborers' misrepresentation was clearly improper under Fed. R. Evid. 701. See U.S. v. Figueroa-Mendoza, 9 Fed. Evid. Rep. (Callaghan) 628 (9th Cir. 1981) (testimony of border patrol officer regarding the behavior patterns of Hispanic aliens arrested for repeated illegal entry was admissible under Rule 701) and Winant v. Bostic, 5 F.3d 767 (4th Cir. 1993) (sales employee who “worked closely” with fraud defendant could express his opinion as to whether defendant intended to do what he promised land purchasers he would do). *34 Jaime White spends six hours a day, six days a week, acting as an interpreter and facilitator for Case Farms' Hispanic employees. (App. 121.) Yet, the Hearing Officer refused to permit Mr. White to answer the following question: Q. [MR. AGRAZ] Based on your experience with Case Farms' employees, what problems would you anticipate these Guatemalan employees may have in determining whether or not the same kind of firing of [Amish] people could happen to them? (App. 131, 132.) The Hearing Officer's rigid hostility to any evidence regarding the “likely effect” of the Union's misrepresentation concerning the Amish carried over to Case Farms' efforts to cross-examine the Union's Hispanic organizers: Q. [MR. HILLER] Mr. Martinez, the statement in the pink handout that “Case Farms fired the entire Amish work force in Ohio” suggests that the laws of the United States did not protect the Amish from mass discharge, correct? MR. GOLD: Objection-- HEARING OFFICER LANE: Mr. Hiller, do you have something to say? Do you have a response? MR. HILLER: ... let's go back to Zartic. What was the Union's “intent?” What was the “likely effect” of this misrepresentation about the Amish? HEARING OFFICER LANE: This witness testified that he didn't draft this document and that he didn't distribute this document. I'm going to sustain the objection. Q. [MR. HILLER] Mr. Martinez, if someone said to you that [your] Employer intends to discharge all persons of Hispanic origin, of which you are one, would that in your estimation create fear? *35 MR. GOLD: © 2016 Thomson Reuters. No claim to original U.S. Government Works. 20 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... Objection.... HEARING OFFICER LANE: Do you have a response, Mr. Hiller? MR. HILLER: Yes, we're going right at Zartic. “Likely effect” on Hispanic employees with these kind of statements in campaigns. HEARING OFFICER LANE: I think it's speculative, and I'm going to sustain the objection. (App. 240-242.) The “bottom line” of the “Amish” leaflet was that, absent Union protection, Hispanics in Morganton would lose their jobs just as the Amish lost their jobs in Ohio. The prospect of losing their jobs at Case Farms was likely to be very unsettling to Hispanic aliens. See Q. B. Rebuilders, Inc., 312 NLRB 1141 (1993) (prospect of job loss due to INS raid “constitutes a serious threat of harm economically” to Hispanic alien voters). Because most of Case Farms' Hispanic alien employees are from rural backgrounds in Guatemala, their skills are largely limited to farming and poultry processing. (App. 122-123.) The prospect of losing their jobs at Case Farms would threaten Hispanic employees with the need to uproot their families and relocate to other poultry processing plants or agricultural harvesting operations far away from Morganton. Because the Morganton, North Carolina, community had geared itself to the unique needs of the Hispanics, the specter of being forced to move away would likely cause grave concern for Hispanic voters. (App. 160-166.) However, the Hearing Officer elected once again to exclude relevant testimony by Mr. Reyes concerning the “likely effect” of the Union's misrepresentation: *36 Q. [MR. HILLER] Have the schools in this community made an effort to utilize Spanish-speaking instructors-MR. GOLD: A this point, I'm going to object to the relevance of continued questions about the community at large school system and ask how it is related to the Objections that the Employer has posed in this case. MR. HILLER: I'd be pleased to respond. HEARING OFFICER LANE: Please do. MR. HILLER: When you threaten people that the Company is going to fire all of them and take their jobs away and cause them to have to uproot and go to some other community ... because they're Hispanic, the question is, how much fear is that going to create. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 21 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... I'm trying to establish what it would mean to these people if the Union's prophesy in Exhibit No. 1 comes true. That's the purpose. HEARING OFFICER LANE: How does it relate to you--I'm still confused as to the relevance as to how-- what the school system has done to-MR. HILLER: Okay. If I'm a Guatemalan worker and Case Farms fires all the Guatemalans like the Union predicts in [the Amish handout], I have to uproot and take my family to Georgia and in that community they might not have the same services for Hispanics. Their schools may not be geared to my children.... What [the Union was] saying to these people is very simply that if you look up in Ohio, the laws of the United States did not prevent this Company from purging an entire religious minority and if you don't bring us in here as your protectors, [Case Farms is] going to engage in the same sort of ethnic cleansing here. Now, I'm trying to demonstrate to you what the impact of that would have [been]. What the “likely effect” would be, in terms of creating fear of having to uproot and its consequences. *37 HEARING OFFICER LANE: I'm going to sustain the question with regard to what the school system has done for Hispanic folks. MR. HILLER: You mean you're going to sustain the objection? HEARING OFFICER LANE: Sustain the objection to the question. MR. HILLER: All right. I will proffer the answer that he would have given if permitted to answer. I think he would have said that through the efforts of Daniel Guterrez and others, the schools in this community have utilized Spanish-speaking instructors and that this has facilitated the education of these [Hispanic] people and that if uprooted and forced to leave, they would very likely have to go to a community where that service was not available. Q. [TO MR. REYES] Now, if the Hispanic employees in this community lost their jobs at Case Farms because ... we fired all the Hispanic employees, what would the impact be on the Hispanic employees? MR. GOLD: Same objection as before. MR. HILLER: © 2016 Thomson Reuters. No claim to original U.S. Government Works. 22 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... “Likely effect.” HEARING OFFICER LANE: I'm going to sustain the objection; that's speculative. MR. HILLER: Well, if permitted to answer, Mr. Reyes would have said that it would be a disastrous event for the Hispanic employees who would have to uproot their families and go to a community that ... is not geared to their needs ... and that the reason that they would have to do so is that their skills are geared to this industry and this is the only poultry processing plant in the area. (App. 161-166.) *38 D. The Hearing Officer Erroneously Ignored Zartic and Relied Upon KI (USA). Having failed to apply Zartic's “intent” and “likely effect” tests in relation to the admission of testimony during the hearing, the Hearing Officer's report attempted to side-step Zartic: The current case is distinguishable from Zartic and more on point with KI (USA) Corp., 309 NLRB 1063 (1992).... ... Unlike Zartic, where the Hispanic employees had knowledge of and fear of the KKK, the employee witnesses in Case Farms, Inc., testified that they did not know who or what the Amish were.... (App. 339-340.) Zartic, supra, involved Hispanic immigrant-voters and Union efforts to generate ethnocentric fear by means of misrepresentations about geographically remote events. The KI (USA) Corp. case which the Hearing Officer deemed to be “more on point” than Zartic did not involve non-English-speaking immigrantvoters or union misrepresentations about geographically remote events. in KI (USA) Corp., 309 NLRB 1063 (1992), the Union was seeking to organize a subsidiary of a Japanese Company which employed American workers. Prior to the election, the Union circulated a letter which a Japanese businessman named Nakamura had written to a magazine for motorcycle enthusiasts. The Japanese author opined in the letter that American workers were typically “lazy” and “uneducated” and branded American managers as “halfwitted.” Noting that the derogatory comments were uttered by a third party who had no affiliation with the Union, the Board distinguished another case where the Union had itself made “racially and nationally pejorative statements” about Japanese. *39 Based on that distinction, the Board found that the Union did not inject “racial, religious, or ethnic epithets against any group.” Id., at 1065. More to the point, the Board found that the American workers were capable of evaluating for themselves whether the pejorative views of the Japanese letter writer mirrored the attitudes of their Japanese-owned employer: In sum, we find no clear evidence that the Union intended to generate a general racially based hostility against Japanese nationals; and, in our view, the employees 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.... © 2016 Thomson Reuters. No claim to original U.S. Government Works. 23 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... Id. By a parity of reasoning, if the Laborers had accused Case Farms of mistreating Hispanic workers in Morganton, there would be no cause for complaint because the Hispanic listeners could judge for themselves whether their treatment was consistent with the Union's claim. But that is not what happened! Rather than confine themselves to topics within the knowledge of Hispanic aliens in North Carolina, the Laborers employed blatant misrepresentations concerning geographically remote eventsl That is exactly what happened in Zartic and that is why Zartic (not KI (USA)) controls the case at bar. Even if one were to assume arguendo (and only arguendo) that KI (USA) was the controlling precedent, the Hearing Officer still failed to apply the “intent” and “likely effect” tests which the Board applied in KI (USA), to wit: In rendering a judgment on this alleged objectionable conduct, the most formidable task we face is assessing the intent of the Union in distributing [the Nakamura] letter ... as well as *40 trying to gauge its likely effect on the unit employees in question. KI (USA), at 1064. As the Board noted in Zartic, the “intent” and “likely effect” test applied in Zartic emanated from KI (USA): ... recently, in KI (USA) Corp., 309 NLRB 1063 (1992), we established an analytical approach for Sewell issues: we will assess the “intent” of the party accused of the relevant misconduct as well as its “likely effect on the unit employees in question,” for the purpose of ascertaining “whether this conduct so clouded the election atmosphere as to require the election to be set aside.” KI (USA), supra, at 1064, 1065. Zartic, supra, at 497. Seemingly oblivious to the analytical approach prescribed in both KI (USA) and Zartic, the Hearing Officer's report will be searched in vain for any analysis of either of the following questions: • In publishing their misrepresentation about Case Farms' treatment of their Amish and Latino employees in Ohio, were the Laborers trying to frighten the Hispanic voters? • Was it likely that non-English-speaking Hispanic aliens in North Carolina could avoid the in terrorem effect of the Laborers' misrepresentations by verifying what actually happened to the Amish in Ohio and/or whether the laws of the United States would protect them from a similar fate? Instead of analyzing the Laborers' “intent” and the “likely effect” of the Laborers' misrepresentations, the Hearing Officer summarily concluded that “[u]nlike Zartic where the Hispanic employees had knowledge of and fear of the KKK, the employee witnesses in Case Farms, Inc., testified that they did not know who or what the Amish were.” (App. 340) Although two of the 514 voters disclaimed knowledge of the Amish (App. 208, 289.), the Hearing Officer's “logic” completely misses the point. In Zartic, *41 the danger to be feared was KKK violence directed at Hispanics. Hence, voter awareness of the KKK's reputation for violence was relevant. In the case at bar, the danger to be feared was not the Amish! The danger portrayed by the Union's handout was the prospect of being “fired” by Case Farms. Whether the Hispanics in North Carolina had any appreciable knowledge about the unique traits of the Amish is irrelevant so long as they understood the prospect of being “fired.” See Jamesway Corp. v. NLRB, 676 F.2d 63, (3rd Cir. 1982) (union handbill created the false impression that recently-hired employees “risked the loss of their jobs unless the union were voted in.”) Case Farms is certainly not questioning the native intelligence of its Hispanic employees. If they spoke English and had the advantage of life-long familiarity with the protections afforded by U.S. law, this would be a very different case. However, the unvarnished truth is that over 350 voters were aliens who did not speak English and had no realistic means to determine whether they could be abused like the Amish had allegedly been abused in a place called Ohio. The law © 2016 Thomson Reuters. No claim to original U.S. Government Works. 24 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... has often recognized that non-English-speaking aliens cannot be expected to function at the same level as seasoned U.S. citizens. See Q. B. Rebuilders, Inc., 312 NLRB 1141 (1993) (workforce comprised of 90% Hispanic aliens was “overwhelmingly vulnerable” to union supporters' threat to cause INS raid if union lost election); Hampton v. Mow Sun Wong, 425 U.S. 88, 102 (1976) (aliens are “often handicapped by a lack of familiarity with our language and customs”); U.S. v. Mosquera, 816 F. Supp. 168, 175 (E.D. N.Y., 1993) (non-English-speaking Hispanics *42 are at a “substantial disadvantage” in understanding their legal rights); U.S. v. Patino, 649 F.2d 724, 727 (9th Cir., 1981) (language barriers inhibited alien's understanding of his legal rights); U.S. v. Williams, No. 91-1989, U.S. App. (6th Cir., May 19, 1992) (unreported) (“language barriers and cultural limitations” make aliens more susceptible to being duped); and Fernandez v. Industrial Comm'n, 419 P. 2d 542 (Arizona, 1966) (because of “language barrier,” Hispanic aliens are “handicapped” in exercising legal rights). E. The NLRB Failed to Explain Its Deviation From Zartic. Other than noting that the case relied upon by the Hearing Officer (KI (USA)) had been denied enforcement by the Sixth Circuit, 4 the NLRB panel summarily adopted the Hearing Officer's report and recommendations without substantive discussion. The Board's “Decision and Certification of Representative” did not even mention Zartic, much less explain why it was not accorded controlling significance. As such, the Board's cavalier change of course is fully subject to the following dictum: “[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion, it may cross the line from the tolerably terse to the intolerably mute.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 799 n.2 (1990) (Blackmun, dissenting) (quoting Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 852 (1970)). *43 IV. THE BOARD ERRED IN CERTIFYING THE RESULTS OF THE ELECTION SINCE THE CUMULATIVE EFFECT OF THE UNION'S MISCONDUCT WAS TO DESTROY LABORATORY CONDITIONS FOR AN ELECTION. The Laborers' campaign to instill fear in voters was not limited to the Amish handout. Case Farms filed seven objections to conduct affecting the July 12, 1995 election, including the following: • The Union threatened to cause the Immigration & Naturalization Service (“INS”) to investigate Case Farms' Hispanic workers if the Union lost the election. (Objection #2.) • The Union threatened reprisals against nonsupporters, including a threat to disclose the names of employees who sought to revoke their authorization cards. (Objection #4.) • The Union created an atmosphere of fear and intimidation through blatant menacing of nonsupporters. (Objection #6.) • The cumulative effect of the Union's misconduct was to destroy the laboratory conditions for an election by depriving Case Farms' employees of an uncoerced choice. (Objection #7.) (App. 16.) Although Case Farms clearly asserted that the cumulative effect of the Union's misconduct was to deprive voters of an uncoerced choice, the Hearing Officer erroneously treated each objection as a “stand-alone” issue which was either outcomedeterminative or not outcome-determinative on its own bottom. See Swing Staging, Inc., v. NLRB, 994 F.2d 859, 863 (D.C. Cir. 1993) (citations omitted) (“[T]he Regional Director failed to assess the cumulative impact of the © 2016 Thomson Reuters. No claim to original U.S. Government Works. 25 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... alleged episodes. The Board is required to make an ‘overall judgment as to whether the atmosphere in the plant ... was so poisoned’ as to materially impair the election results.... Instead, the Regional Director analyzed each objection solely in isolation.”). *44 An excellent example of the Hearing Officer's insistence on treating each instance of misconduct “solely in isolation” is the Laborers' menacing of non-supporters (Objection #6). Fannie Crawford is a dignified, credible lady who has worked at the Morganton facility for 20 years. (App. 83.) Mrs. Crawford works in an area known as the “front half” where she de-bones chicken breasts. (App. 83.) Mrs. Crawford declined Union literature and did not support the Union. (App. 83.) During the three weeks prior to the election, Mrs. Crawford was repeatedly pelted with chicken parts by Union supporters. (App. 105-109, 117.) On several occasions Union supporters also threatened to cut Mrs. Crawford's throat and used a large filleting knife to simulate the act of cutting a person's throat. (App. 86-88.) This menacing conduct continued right up to election day. (App. 112-113.) Mrs. Crawford was also subjected to racial slurs by a Union supporter. (App. 89.) However, the menacing of Fannie Crawford was not confined to Union supporters. The organizers imported by the Union got into the act as well. Mrs. Crawford's husband picks her up from work each evening. On Tuesday, July 11, the evening before the election, Mr. Crawford picked up his wife around 6:00 p.m. (App. 83.) When the Crawfords left the plant, they were followed by two Union organizers. (App. 83-84.) Mrs. Crawford knew that the pair were Union organizers because she had seen them repeatedly in front of the building passing out campaign literature at the end of her shift. (App. 84.) One of the organizers was male, one was female, and both were Hispanic. (App. 83.) After leaving the plant, Mrs. Crawford and *45 her husband stopped at a grocery store and made a second stop at her sister's residence. The Union organizers continued to follow the Crawfords after both of these stops. (App. 85.) Mrs. Crawford's normal drive home is only seven miles. (App. 86.) However, the Crawfords drove an additional 15 or 20 miles out of their way in an unsuccessful effort to lose the organizers. (App. 85.) The two organizers followed the Crawfords all the way to their home where they stopped and stared at Mrs. Crawford and her husband. (App. 86.) The organizers made no effort at any time to avoid being seen. (App. 86.) Although she did not discredit Mrs. Crawford, the Hearing Officer apparently found it significant that Mrs. Crawford was “unable to name the individuals in the car.” (App. 336.) However, the following testimony of Fannie Crawford stands unrebutted: Q. [MR. HILLER] You said you were followed by two (2) Union organizers? A. [MRS. CRAWFORD] Yes, I was. Q. Were they both males, both females, what-A. One (1) male and one (1) female Hispanics. Q. Both were Hispanic? A. Um-huh. Q. How did you know they were Union organizers? A. Because I saw them a lot in front of the building passing out papers, Union papers, and I've also seen them on the numerous occasions down there, when I got off work. Q. Did you see them passing out Union literature frequently, or just once? A. A lot. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 26 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... *46 Q. [MR. GOLD] When did you first see the male individual? A. I saw him outside, he was passing out the Union folders, pamphlets and stuff. Q. And when was that? A. I saw him on numerous occasions out there. Q.... How do you know that the male employee was Hispanic? A.... I heard him talk and he spoke Spanish. (App. 84, 93-94.) The Hearing Officer found that the menacing of Fannie Crawford consisted of “isolated incidents” which, standing alone, “did not create an atmosphere of fear and reprisal rendering a free election impossible.” (App. 337.) The Hearing Officer's report will be searched in vain, however, for any analysis of the cumulative impact of the Laborers' menacing of nonsupporters such as Fannie Crawford in tandem with the effort to exploit ethnic fears in the “Amish” flyer. See NLRB v. Claxton Mfg. Co., 613 F.2d 1364 (5th Cir. 1980) (“... the test ... is whether considered cumulatively [the union's acts of coercion] tended to interfere with the outcome of the election.”) Nor did the Hearing officer consider the cumulative impact of statements by Yanira Merino which could have engendered fear of INS raids among Hispanic alien voters. Abelino Mendoza-Montejo, an alien from Guatemala, testified that on Friday, June 30, Yanira Merino raised the specter of an INS raid if the Laborers lost the election. (App. 206-207.) See *47 Crown Coach Corp., 284 NLRB 1010, 1011 (1987), (election set aside where rumors of an INS raid were disseminated among Hispanic voters). Baltazar Garay confirmed Mendoza-Montejo's testimony: Q. [MR. AGRAZ] ... Do you know an employee named Abelino Mendoza-Montejo? A. [MR. GARAY] Yes. Q. And how do you know him? A. I met him at work. Q. Have you ever had any discussions with him about the Union? A. Yes. Q.... what do you remember him saying to you about the Union? A. Abelino Mendoza told me that Ms. Yanira closed him in a room and told him that, if the Company won, she was going to send him to Immigration. (App. 209.) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 27 CASE FARMS OF N.C., Incorporated, Petitioner -..., 1996 WL 33455030... The record evidence is clear that Case Farms' work force was highly susceptible to rumors of INS raids. Case Farms periodically updates its records regarding the authorization of its alien employees to work in the United States. (App. 62.) On June 7 and June 12, 1995, Case Farms requested updated documentation from 104 aliens whose work permits had either expired or were about to expire. (App. 63.) Only 33 responded with updated permits. (App. 64.) Hector Reyes testified that the INS was a “hot button” issue with Hispanic aliens. (App. 159-160.) Mr. Reyes described a recent incident where a number of North Carolina correctional officers descended on Morganton looking for a prison escapee. Due to a similarity in their uniforms, the correctional officers were mistaken for INS officers and Case Farms experienced a high rate of *48 absenteeism by Hispanic employees the next day. (App. 159-160.) Yanira Merino also acknowledged at the hearing that “a significant number of Hispanic employees tend to be fearful of the INS.” (App. 282-283.) Notwithstanding the Hispanic aliens' susceptibility to rumors of INS raids, the Hearing Officer's report fails to consider the cumulative effect of the dissemination of the INS threat in tandem with the Laborer's deliberate effort to engender ethnic fear via the Amish flyer. Indeed, the Hearing Officer's 17-page report dismisses Case Farms' cumulative impact objection with one scant, conclusory sentence: Objection 7: The Union destroyed the laboratory conditions for an election by the combination of events set forth in Objections Nos. 1-6 in concert with other misconduct which created fear and confusion among voters. Based upon the foregoing, and the record as a whole, I find that the Union did not destroy the laboratory conditions for an election by a combination of the above-discussed events or by any additional acts of misconduct. Accordingly, I shall recommend that Employer's Objection 7 be overruled. (App. 343.) Case Farms' employees were entitled to an uncoerced choice and the cumulative effect of the Union's misconduct was to deny them such a choice in the July 12 election. *49 CONCLUSION What does the phrase “laboratory conditions” really mean where the vast majority of the voters are non-English-speaking aliens? If Unions can deliberately employ blatant misrepresentations to engender fear, the phrase “laboratory conditions” will be reduced to a cruel hoax in any election unit comprised of non-English-speaking aliens. For the foregoing reasons, Petitioner Case Farms of N.C., Inc. respectfully requests that the decision of the National Labor Relations Board finding Petitioner in violation of Section 8(a) (5) of the National Labor Relations Act for refusing to bargain with the Union be reversed, that the decision of the Board certifying the Union as the exclusive bargaining representative of Case Farms' employees in the designated bargaining unit be set aside, and that the Board be ordered to conduct another election for purposes of determining whether the employees within the designated bargaining unit desire representation by the Union. Footnotes All citations to the “transcript” are to the transcript of the August 9-10, 1995 hearing in Case 11-RC-6089 concerning Case 1 2 3 4 Farms' objections to conduct affecting the election therein. Marc Panapinto works out of the Laborers headquarters in Washington. (App. 237.) Panapinto directed the Laborers campaign from his Washington office and Yanira Merino reported to Panapinto. (App. 260-261.) “If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of ... the determination of a fact in issue.” Fed. R. Evid. 701. See KI (USA) Corp. v. NLRB, 35 F.3d 256 (6th Cir. 1994). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 28