CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... 1996 WL 33455026 (C.A.4) (Appellate Brief) United States Court of Appeals, Fourth Circuit. CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner; NATIONAL POULTRY WORKERS ORGANIZING COMMITTEE, Affiliated with the Laborers' International Union of North America, AFL-CIO, Intervenor. Nos. 96-1402-L, 96-1566. July 21, 1996. On Petition for Review and Cross-Petition for Enforcement from the National Labor Relations Board Brief of Intervenor Laurence E. Gold, 905 - 16th Street, NW, Washington, D.C. 20006, (202) 942-2209, Counsel for Intervenor. *i TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................................... STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ...................... STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................................... STATEMENT OF THE STANDARD OF REVIEW ................................................................ STATEMENT OF THE CASE ................................................................................................... I. Nature of the Case .................................................................................................................... II. Course of Proceedings ............................................................................................................. III. Disposition Below .................................................................................................................. IV. Statement of Facts ................................................................................................................. A. The Case Farms Work Force .................................................................................................. B. The Union Representation Election Campaign ....................................................................... C. The “Case Farms Doesn't Care!” Leaflet ................................................................................ D. The Conversation Among Abelino Mendoza Montejo and Others ......................................... E. The July 6 and July 7 Events at the Plant Entrance ................................................................ F. The Alleged Conduct Involving Fanny Crawford .................................................................... SUMMARY OF ARGUMENT .................................................................................................. ARGUMENT .............................................................................................................................. I. The “Case Farms Doesn't Care!” Leaflet Did Not Constitute an Impermissible Racial Appeal II. This Court Lacks Jurisdiction Over Case Farms' Argument that the Hearing Officer Improperly Excluded Relevant Evidence ...................................................................................... *ii III. There Was No Atmosphere of Fear and Coercion Otherwise ......................................... A. The Incidents Involving Union Organizers Created No Such Atmosphere .............................. B. The Incidents Involving Unknown Third Persons Created No Such Atmosphere .................... CONCLUSION ............................................................................................................................ *iii TABLE OF AUTHORITIES Cases Air Express Corp., 289 NLRB 608 (1988) .................................... Archer Laundry Co., 150 NLRB 1427 (1965) ............................... Aristocrat Linen Supply Co., Inc., 150 NLRB 1448 (1965) ............ Bancroft Mfg. Co., Inc., 210 NLRB 1007 (1974), enf'd, 576 F.2d 436 (5th Cir. 1975), cert. denied, 424 U.S. 914 (1976) ................... © 2016 Thomson Reuters. No claim to original U.S. Government Works. iii 1 1 1 1 1 1 1 1 1 2 4 7 8 11 14 15 16 27 29 30 31 33 24 19 19 22, 23, 24, 26 1 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... Beaird-Poulan Division, Emerson Electric Co., 247 NLRB 1365 (1980), enf'd, 649 F.2d 589 (8th Cir. 1981) ................................... Beatrice Grocery Products, 287 NLRB 302 (1987), enf'd sub nom. Martha White Foods, Inc. v. NLRB, 872 F.2d 1026 (6th Cir. 1989) ...................................................................................................... Buffalo Neighborhood Housing Service, Inc., 267 NLRB 514 (1983) ........................................................................................... Coca Cola Bottling Co., 232 NLRB 717 (1977) ............................ Coca Cola/Dr. Pepper Bottling Co., 273 NLRB 444 (1984) ........... Dunham's Athliesure Corp., 315 NLRB 689 (1994) ....................... Jamesway Corp. v. NLRB, 676 F.2d 63 (3rd Cir. 1982) ................ KI (USA) Corp., 309 NLRB 1063 (1991), enf't. denied, 35 F.3d 256 (9th Cir. 1994) ....................................................................... Kresge-Newark, Inc., 112 NLRB 869 (1955) ................................. *iv Methodist Home v. NLRB, 596 F.2d 1173 (4th Cir. 1979) ..... Metz Mettallurgical Corp., 270 NLRB 889 (1984) ........................ Midland National Life Ins. Co., 263 NLRB 127 (1982) ................. NLRB v. Baltimore Luggage Co., 162 NLRB 1230, enf'd, 387 F.2d 744 (4th Cir. 1977) ............................................................... NLRB v. Cast-a-Stone Products Co., 479 F.2d 396 (4th Cir. 1973) ...................................................................................................... NLRB v. Daniel Construction Co., 731 F.2d 191 (4th Cir. 1984) ... NLRB v. Electro Plastic Fabrics, Inc., 381 F.2d 374 (4th Cir. 1967) ............................................................................................. NLRB v. Herbert Halperin Distributing Corp., 826 F.2d 287 (4th Cir. 1987) ..................................................................................... NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325 (5th Cir. 1991) .. NLRB v. Sandpiper Convalescent Center, 126 LRRM 2204 (4th Cir. 1987) ..................................................................................... NLRB v. Sumter Plywood Corp., 535 F.2d 917 (5th Cir. 1976), cert. denied, 429 U.S. 1092 (1977) ................................................ NLRB v. Utell International, Inc., 750 F.2d 177 (2d Cir. 1984) ..... NLRB v. VSA, Inc., 24 F.3d 588 (4th Cir.), cert. denied, 115 S. Ct. 635 (1994) .................................................................................... Peerless of America, Inc. v. NLRB, 576 F.2d 119 (7th Cir. 1978) .. Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376 (8th Cir. 1993) ............................................................................................. *v Rosslyn Concrete Construction Co. v. NLRB, 713 F.2d 61 (4th Cir. 1983) .............................................................................. Schneidger Mills, Inc. v. NLRB, 390 F.2d 375 (4th Cir. 1968) ....... Sewell Mfg. Co., 138 NLRB 66 (1962) ......................................... Southland Container, Inc., 312 NLRB 1087 (1993) ....................... State Bank of India v. NLRB, 808 F.2d 526 (7th Cir. 1986), cert. denied, 483 U.S. 1005 (1987) ........................................................ Vitek Electronics, Inc. 268 NLRB 522 (1984), m'fied, 763 F.2d 561 (3rd Cir. 1985) ............................................................................. Westwood Horizons Hotel, 270 NLRB 802 (1984) ........................ Woelke romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982) ........ Yukon Mfg. Co., 310 NLRB 324 (1993) ....................................... Zartic, Inc., 315 NLRB 495 (1994) .............................................. Other 29 U.S.C. § 160(e) ........................................................................ Fed. R. Evid. 701 ......................................................................... 16, 31 18, 21 29 19, 21 19 32 27 18, 21-22 22, 23 32 31 25-26, 27 18, 19, 20 28 28 28 16, 19, 26, 31 20 28 21, 26 26 27 26 29 28 27 18, 25, 26, 30 32 20, 26 32 31 28 31 18, 25, 26 27 29 *1 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION Pursuant to Fed. R. App. P. 28(i), the Intervenor adopts by reference the statement included in the brief of Respondent/ Cross-Petitioner National Labor Relations Board (“NLRB” or “Board”). © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... STATEMENT OF THE ISSUES PRESENTED FOR REVIEW Pursuant to Fed. R. App. P. 28(i), the Intervenor adopts by reference the statement included in the brief of the NLRB. STATEMENT OF THE STANDARD OF REVIEW Pursuant to Fed. R. App. P. 28(i), the Intervenor adopts by reference the statement included in the brief of the NLRB. STATEMENT OF THE CASE I. Nature Of The Case Pursuant to Fed. R. App. P. 28(i), the Intervenor adopts by reference the statement included in the brief of the NLRB. II. Course Of Proceedings Pursuant to Fed. R. App. P. 28(i), the Intervenor adopts by reference the statement included in the brief of the NLRB. III. Disposition Below Pursuant to Fed. R. App. P. 28(i), the Intervenor adopts by reference the statement included in the brief of the NLRB. IV. Statement Of Facts A. The Case Farms Work Force Case Farms of N.C., Inc. (“Case Farms”) operates a poultry processing plant in Morganton, N.C. (J.A. 330.) There are 514 bargaining unit members. (J.A. 10.) Approximately 80% of these *2 employees are Latino. Of that 80%, approximately 90% are Guatemalan, and most of the others are Mexican, with the remainder originating from four other Latin American countries. (J.A. 61.) About 70% of the Latino workers are not U.S. citizens. (J.A. 62.) The number of Latino employees has increased over the past 3 1/2 years; in February 1992 approximately 50-60% of the workforce was Latino. (J.A. 70.) A high percentage of the Guatemalan workers come from a province called Aguacatano and speak the Aguacatano dialect, which is not Spanish. (J.A. 123-24, 125-26, 212.) The Guatemalan employees speak five different dialects. Very few speak English. (J.A. 138) Approximately 75% of the Guatemalans are illiterate in Spanish and cannot write or sign their names. (J.A. 122, 141, 154.) They have little education. (J.A. 154.) Perhaps two of the Guatemalan employees can read English. (J.A. 141.) B. The Union Representation Election Campaign On May 15, 1995 approximately 200 employees struck Case Farms due to their concerns about wages and working conditions. (J.A. 7, 8.) The striking workers delivered a letter to the Employer's Director of Human Resources, Ken Wilson, that set forth specific complaints and demanded numerous improvements in those conditions, a wage increase and the reinstatement of certain discharged employees. (J.A. 7-8; Employer Exh. 1 at June 2, 1995 NLRB hearing.) As the NLRB found in its decision in this case below (J.A. 331), all the demands during the strike *3 concerned © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... working conditions and Case Farms policies that pertained to the entire work force, not just Guatemalan or other Latino employees. (J.A. 78, 79). The chief organizer for the National Poultry Workers Organizing Committee, Affiliated with the Laborers' International Union of North America, AFL-CIO (“the Union”) in its effort to organize Case Farms was Yanira Merino, a native Savadoran. (J.A. 228, 243-44, 260.) The Union sent approximately eight other persons to work on the campaign, including staff organizers and rank-and-file Union members. Most but not all of them spoke Spanish. (J.A. 226-27.) During the campaign the Union leafletted the plant almost daily. Leaflets were distributed to all workers, regardless of race, ethnicity or nationality, and there was no attempt to leaflet only particular kinds of workers. (J.A. 221, 245.) The Union distributed 15 leaflets during the campaign; all but one were printed bilingually. (J.A. 246-47, 248, 261, 304-27.) Union “house calls” during the campaign were made on Latino, white and black employees alike. (J.A. 225.) 1 During the campaign, Merino sometimes referred to the Latino background of many workers, but only in connection with Union statements that the Union would help them secure their rights under American law. (J.A. 260.) *4 Each Union leaflet referred generally to all Case Farms workers and addressed conventional campaign issues, such as the need for solidarity; a safe working environment; respect, dignity and justice in the workplace; the Employer's profits; Employer unfairness; broken Employer promises; dishonest Employer campaign tactics; the Employer's wage scales and benefits relative to those of other companies; announcements of Union meetings; and critiques of the early intervention in the campaign by another union. (See J.A. 304-27.) Only one leaflet referred to the ethnic composition of Case Farms' Morganton workforce, saying “Today we move forward as workers -- white, black and latinos.” (J.A. 308.) Only one other leaflet, discussed more fully below, referred to Latinos. (See J.A. 304, 305.) C. The “Case Farms Doesn't Care!” Leaflet One Union leaflet published in both English and Spanish was entitled “Case Farms Doesn't Care!” (J.A. 304, 305.) The evidence is inconclusive as to when it was used; the NLRB found below that it issued on “an unknown date.” (J.A. 20, 228, 337.) Nor does the record indicate how or where it was distributed. (See J.A. 20, 228.) The English version read as follows: Case Farms Doesn't Care! This year they had three people arrested. Two years ago they had 50 people arrested. 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. *5 Why? Because they could pay Latinos less and treat them worse. They care more about the chickens than any of their workers. How are we going to prevent Case Farms from treating us like the Amish? If We Want Case Farms to Treat Us with Dignity and Respect Then We Must Unite for Change--Vote Union YES Laborers' International Union of North America (J.A. 304 (bold face in original).) According to Employer witness Jaime White, the Spanish version was an accurate translation of this, except it said that “some” of the fired workers were Amish, not that the “entire” workforce was Amish. (J.A. 146.) The Union did not intend this leaflet to be directed at only the Latino employees. (J.A. 274-75.) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... This leaflet echoed campaign themes in other leaflets: first, that Case Farms mistreated its Ohio workers as well as its North Carolina workers (see J.A. 309-10); second, that Case Farms had a history of causing the wrongful arrests of employees (see J.A. 314-15, 325-26); third, that Case Farms treated its employees unfairly and arbitrarily (see J.A. 309-11, 314-15, 321-22, 325-26); and finally, that worker unity was necessary to achieve dignity and respect at Case Farms. (See J.A. 308, 311-17, 325-26.) The Union distributed this leaflet on the basis of information provided by an Ohio-based organizer from a different *6 union. (J.A. 237-38, 275-76, 280.) Union organizers were not sure whether the Guatemalan or Mexican workers knew who the Amish were. (J.A. 237.) There is nothing in the record to indicate that anyone explained to these workers what “Amish” meant. The only employee witnesses on the subject -- including an Employer witness -- testified that they did not know who the Amish were. (J.A. 208, 289.) Case Farms has operated a poultry processing plant near Winesburg, Ohio since January 1987 (J.A. 20-21), according to James L. Cooke, a former senior manager at that plant who left it sometime in 1989. (J.A. 35.) According to Cooke, there were 160 employees in 1987, of which 62 were Amish. (J.A. 21.) Cooke testified that in 1987 and 1988 the plant expanded to 375 employees, and that during 1988 the number of Amish employees began to decline. (J.A. 26, 28.) Cooke attributed the decline to Amish contacts with the new, “less refined” employees and to Case Farms' standardization of personnel practices that refused to honor Amish holidays. (J.A. 27, 29-30.) As the Board found below, Cooke had “no first hand knowledge of the Winesburg, Ohio facility, since his departure from the facility in 1989,” and his testimony, including the relative numbers of Latino and Amish employees, is based solely on a single page of figures provided to him by the Winesburg plant, within two weeks of the hearing in this case. (J.A. 44-46, 338.) The Employer submitted no records to support Cooke's double hearsay testimony. Cooke transferred to the Morganton plant in *7 May 1990, and has worked there ever since. (J.A. 36.) Cooke has not been to the Winesburg plant since May 1990 and has spoken with no Amish employees since then. (J.A. 39-40, 42.) D. The Conversation Among Abelino Mendoza Montejo and Others In early June 1995, employee Abelino Mendoza Montejo, a non-citizen of the United States, received an Employer notice ordering him to produce a new work permit. (J.A. 194.) Montejo became worried about his job after he received this notice. (J.A. 206.) Subsequently, about two or three weeks before the representation election, Montejo had a conversation with Union organizer Merino and at least three other employees. (J.A. 189, 190, 255, 270-71.) Montejo asked Merino what the Union could do to help him regarding his work permit. Merino replied that the Union did not have that power and could not help people who lacked proper papers. (J.A. 191-92, 194-96.) Montejo replied that “I will look where they will give me bread” and “I'm not going to eat dirt. If I go to the Company and they guarantee me work what would you do?” (J.A. 191, 192.) Merino told Montejo that the Union was not an immigration agency and that federal law governed the situation. Montejo responded that if there was nothing the Union could do then he must cut a deal with *8 the Company; Merino replied that that was his option. (J.A. 256-57.) 2 Montejo stated that Wilson “had handed to him his warm hand, and we had a cold one,” and [the Union] had a cold one.” Merino responded “Well, I hope they continue giving - handing out their warm hand after the Union loses.” (J.A. 258-59.) Merino never told Montejo that the Union would call in immigration authorities if the Union lost. (J.A. 258.) Nor did she suggest to any employee that the Employer might call in the INS. (J.A. 282.) None of the other three employees who participated in and testified about this conversation stated that Merino said anything to suggest that © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... the Union would summon immigration authorities. (See J.A. 285-87, 288, 296-97, 302-03.) Montejo said Merino did not condition any comment on whether or not the Union lost the election. (J.A. (193.) The Board concluded that Montejo's testimony was “confusing and unreliable” and credited Merino and the other employee witnesses' testimony that “no threat to call the INS was made.” (See J.A. 341-42.) E. The July 6 and July 7 Events at the Plant Entrance On July 6, 1995, Union organizer Elias Martinez had a conversation with employee Jesyka Martinez in front of the guard *9 shack at the plant entrance in the presence of four other Union organizers. (J.A. 218-19.) They were handing out leaflets when Jesyka Martinez came out of the plant. She stated to them that the Union was not welcome and that neither she nor other workers wanted it. Elias Martinez replied that that was her opinion and that they were not there to argue or fight. Jesyka Martinez left in her car but soon returned, stopped in the street and started to talk to them again. She said she didn't want us here, and then we started talking about the workers. She had said that other Guatemalans, and -- are nothing but lazy bums. They sleep on the job. She has had - there are times when she had to awake [sic] them up on the job. She was also upset because when they don't do the job, she had to do the job for them. Nobody responded and she left. (J.A. 220, 232.) The end of the next work day, July 7, as Jesyka Martinez left the plant she took a Union leaflet, crumpled it and threw it to the ground and then pulled aside two organizers, including Elias Martinez. (J.A. 221-22.) Jesyka Martinez stated that all unions just try “to take these people's money” and that the Union organizers were “here to cause problems.” The organizers responded that they were not there to cause problems or to fight and stated that they would be willing to speak with her when they were not leafletting. She then left in her car. (J.A. 222.) About ten minutes later, however, Jesyka Martinez returned and swerved her car toward organizer Merino, “yell[ing] stupid bitch.” (J.A. 249-50.) Jesyka Martinez then exited her car and began exhorting workers who were leaving the plant to oppose the *10 Union. (J.A. 223, 250.) She yelled at workers not to take Union leaflets and pulled leaflets out of workers' hands. (J.A. 223.) She told them that the organizers were just telling lies, looking for dues and cared only about money, criticized Union officials for taking high salaries, and urged the workers to ask Merino how much money she made. (J.A. 250.) Merino asked Martinez to stop because she was confusing the workers and said the workers were going to make their own choice in the election and believed that by organizing themselves they could improve their working conditions. (J.A. 251.) Martinez continued that Merino did not really care about the workers and that everything was a lie. (J.A. 251.) A female employee challenged Martinez's knowledge of the plant because she had only been working there five weeks, and the two employees began to argue. (J.A. 223, 252-53.) Martinez also said to another employee that “Guatemalan people are lazy, and cry babies.” (J.A. 287.) Merino then asked Martinez if she really cared about the workers why she had referred to them as “lazy bums” the day before. Martinez denied this comment, but when Elias Martinez challenged her, Jesyka Martinez said that she “didn't say that about all of them.” (J.A. 223-24, 252-53.) Several workers told Jesyka Martinez that she did not know what she was talking about, but there were no jeers or catcalls. (J.A. 230, 236.) During this conversation there were 40 or 50 employees in the vicinity, which was very noisy due to the sounds of workers *11 leaving the plant and trucks and cars driving by. (J.A. 229-30, 242.) This encounter occurred just 3 1/2 to 4 feet from the guard shack. (J.A. 174-75.) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... At some point the police arrived and questioned Jesyka Martinez and several of the organizers, ending the conversation. (J.A. 225, 257.) The record does not disclose what prompted the arrival of the police. Nor did any witness characterize this incident as a disturbance of any kind. The Board rejected the Employer's effort to so characterize it, finding also that there was “no evidence that the Union intended to create a volatile situation or to influence the ethnic concerns of the employees” there. (J.A. 334.) The Board further credited the testimony of Merino and Elias Martinez, finding them to be “straightforward and truthful witnesses,” while discrediting Jesyka Martinez was “biased, argumentative and evasive.” (See J.A. 333.) F. The Alleged Conduct Involving Fanny Crawford Case Farms employee Fanny Crawford testified that unnamed employees at her work station threw chicken wings at her about three weeks before the election. (J.A. 83, 86, 107.) Crawford concluded that these employees were “Union supporters” because she overheard them talking about the Union. (J.A. 105.) Crawford also testified that on the day of the election some employees were “just acting up. Beating and banging and everything and throwing chicken and all,” hitting Crawford and another employee. (J.A. 108.) Crawford has observed employees throwing chicken wings at each other “all the time”; though *12 employees are not supposed to do this, they do so routinely. When supervisors are not around, employees play around and throw chicken wings and chicken parts in fun and in jest. (J.A. 106.) Crawford also testified that on the day of the election two employees waved knives in her direction, which she reported to her supervisor, who did nothing. (J.A. 112-13, 116.) Another employee made a throat-cutting motion toward her with a knife on the morning of the election, which she also reported to her supervisor, who took no action. (J.A. 114-15.) Crawford has never spoken with the employee who made the throat-cutting gesture. (J.A. 113.) She did not further describe or identify this employee, nor did she testify how she knew any knife-wielders were Union supporters. She did not testify that any conversation accompanied the gestures or that any Union-related conversation was occurring at the time. No supervisor testified at the hearing. Crawford also testified that an unnamed Hispanic employee called her a “nigger” on July 13, the day after the election. (J.A. 89-90, 111.) Crawford testified about no other racial remarks. The NLRB concluded below that the record failed to establish that the employees who engaged in this “isolated” conduct were Union organizers or agents. (J.A. 336-37.) Crawford also testified that on July 11, the day before the election, a grey “late model Japanese car between a Nissan and a Honda” followed her and her husband when they drove home after *13 work. (J.A. 84.) She claimed that two “Union organizers” were in the car, one male and one female. (J.A. 84.) Crawford described them as Hispanics (J.A. 95.) She believes they are Union organizers because she has seen them passing out leaflets at the plant. (J.A. 84, 97, 98.) She does not know their names. (J.A. 92-93.) Crawford does not know all the employees by name or by face. Tr. 92, 94.) Crawford has seen this grey car parked at the Case Farms upper parking lot for employees. (J.A. 96.) On July 11 Crawford did not see the grey car until she and her husband reached the grocery store that was her first stop on the way home. (J.A. 95, 100-01.) The grey car was behind her car when they left the grocery store to go to her sister's house. They arrived at her sister's house and noticed the grey car going down the street. (J.A. 102.) They stayed at her sister's house for 15 minutes. They did not see the grey car parked there and did not see it when they left her sister's house. They first noticed it again at a red light sometime later. (J.A. 103.) They then took a circuitous route home with the grey car following them. (J.A. 103.) When they arrived home the grey car stopped for “no more than a minute or two (2) seconds,” its occupants “stared,” and then the car moved on. (J.A. 85; Hearing Transcript at 344.) © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... There is no evidence in the record that Crawford informed any employee about this alleged incident before the election concluded the next day. *14 The Union rented only two Japanese cars during the campaign; both were gold, not grey. (J.A. 217-18, 248-49.) Only one organizer utilized his own car -- a Buick -- during the campaign. (J.A. 272-73.) Merino was the only female Latino organizer; the only two other female organizers were white with blond hair. (J.A. 259, 273-74.) At the hearing Crawford did not recognize Merino, who was seated just a few feet from her. (J.A. 111-12.) But Merino leafletted employees outside the plant for all but eight or nine days from May 20 through July 12, and she recognized Crawford as an employee to whom Merino had offered leaflets during the campaign. (J.A. 244-46.) The NLRB concluded below that the record did not establish that the persons in the car were Union organizers or agents. (J.A. 336-37.) SUMMARY OF ARGUMENT The Employer has not met its heavy burden to demonstrate that the Board erroneously certified the Union as the employees' collective bargaining representative. The Union's election campaign was directed at all employees without regard to race or ethnicity. Its principal themes stressed problems with wages and working conditions, dignity, Employer unfairness, and the need for unity and collective action. The single leaflet challenged by the Employer in this case did not constitute an impermissible inflammatory racial appeal. *15 Under this Court's and the NLRB's standards, to be objectionable a statement must appeal to racial prejudice, raise irrelevant matters without connection to legitimate campaign issues and involve a sustained course of conduct. None of these elements existed with respect to this leaflet. Accordingly, the truth of the content of the leaflet is irrelevant; but even so, there was no showing here that the leaflet was untrue. Absent an impermissible racial appeal, the leaflet is protected by the Board's general, non-intrusive policy regarding election campaign statements. The Employer has waived any argument that the NLRB Hearing Officer improperly excluded evidence below by failing to raise these objections in the Employer's exceptions to the Board from the Hearing Officer's report. The National Labor Relations Act creates an express jurisdictional bar to a reviewing court's consideration of such matters. Insofar as any of these rulings are addressed on their merits, the testimony at issue would have consisted of pure speculation unnecessary to the Board's disposition below. Finally, there was no atmosphere of fear otherwise in this campaign. Neither the incidents involving Union representatives nor those involving third parties created any such atmosphere. The Employer has failed to address, let alone refute, the Board's factual findings in this regard. *16 ARGUMENT We adopt the NLRB's description of the heavy burden on the Employer as the objecting party to demonstrate that the Board's certification order was erroneously issued. The Board's factual and legal conclusions below are entitled to substantial deference. But even if review were de novo, we submit that they were correct and should be upheld. As we show below, and as the NLRB has shown in its brief, the Employer is unable to “show by specific evidence ‘not only that improprieties occurred, but also that ... they materially affected the election results.”’ NLRB v. Herbert Halperin Distributing Corp., 826 F.2d 287, 290 (4th Cir. 1987), quoting Beaird-Poulan Division v. NLRB, 649 F.2d 589, 592 (8th Cir. 1981). © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... I. The “Case Farms Doesn't Care!” Leaflet Did Not Constitute an Impermissible Racial Appeal The Employer's principal contention is that the Union inflamed racial or ethnic fears during the campaign by focusing its campaign on Latino employees and distributing the “Case Farms Doesn't Care!” leaflet. The Board correctly rejected these claims. The fundamental flaw in the Employer's argument lies in its gross mischaracterization of the nature of the Union's campaign and the single leaflet at issue. In fact, as the Board found, the Union campaign was not predicated on racial or ethnic themes, despite the overwhelmingly Latino composition of the work force. The Union's leaflets stressed economic fairness, dignity and unity issues -- referring just once to the ethnicity of the *17 Morganton Case Farms workers in a leaflet entitled “UNITY!” that “[t]oday we move forward as workers - white, black and latinos.” (See J.A. 308.) Insofar as Union representatives talked about the Latino workers, they stressed that the Union could help them understand and assert their legal rights. The record is devoid of evidence of any contrary message or appeal elsewhere during the campaign -- including the “Case Farms Doesn't Care” leaflet. That leaflet, distributed in both English and Spanish, was directed at all the workers without regard to their ethnicity. Its point was its headline, namely, that “Case Farms doesn't care.” The leaflet illustrated this message by referring to Employer-caused arrests in May 1995; Employer-caused arrests two years before; and Employer replacement in Ohio of Amish workers, despite their years of loyal service, with Latinos who could be paid less and treated worse. The leaflet accused Case Farms of caring “more about the chickens than any of their workers” (without reference as to race or ethnicity) and urged all Morganton Case Farms workers to “unite to change,” to prevent similar mistreatment and to compel Case Farms “to treat [them] with dignity and respect.” (J.A. 304, 305.) This leaflet thus echoed the principal themes of the Union's campaign. Its clear intent was to urge all the workers to vote for the Union in order to be able to deal effectively with an uncaring, unfair and hostile employer. The Employer's characterization of the Union's campaign as engaging in “the industrial equivalent of ‘ethnic cleansing,”’ *18 Emp. Br. at 9 (which the Board below aptly termed “misplaced, misleading and inappropriate” (J.A. 330)), departs wildly from the record and the Board's factual conclusions. The Employer also ignores substantial governing case law developed by this Court and the Board that demonstrates that the Union's electoral efforts were well within the broad sphere of legitimate campaign conduct. This Court has adopted the NLRB analysis of racially-oriented remarks explicated in Sewell Mfg. Co., 138 NLRB 66 (1962). See NLRB v. Baltimore Luggage Co., 387 F.2d 744, 746 (4th Cir. 1967). The Board's current explication of this standard is as follows: [In Sewell] the Board held that it would set aside elections when a party embarks on a campaign which seeks to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals. 138 NLRB at 72. Sewell itself involved a party's sustained course of conduct, deliberate and calculated in intensity, to appeal to racial prejudice. The Board in Sewell distinguished such conduct from isolated, casual, prejudicial remarks. Beatrice [Grocery Products, 287 NLRB 302 (1987)]. Although we found no basis to set aside the election on Sewell grounds in Beatrice, we indicated generally the kind of conduct which would be unacceptable. Thus, when a party makes “racial, ethnic, or religious references as part of an inflammatory campaign theme,” or the party brings 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.” Beatrice, supra at 303. Most 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 *19 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. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... Zartic, Inc., 315 NLRB 495, 497 (1994). In NLRB v. Herbert Halperin Distributing Corp., this Court rejected employer election objections predicated on remarks by black employees that referred angrily and profanely to white employee support of the Employer, and that asserted that the Employer favored white employees in work assignments. The Court found that the election “was waged primarily over money and working conditions,” the intemperate remarks reflected those concerns, and they did not “suggest an atmosphere inflamed by racial tension” or “a deliberate attempt by the union to divert the employees from legitimate issues by insinuating an irrelevant appeal to race.” 826 F.2d at 292. 293. In the case at bar the Union waged a campaign on strictly conventional issues as well, and neither it nor its supporters made racially derogatory comments to or about anyone. In NLRB v. Baltimore Luggage Co., 387 F.2d at 746-47, this Court embraced the Board's view that a union may appeal, even in a sustained fashion, to racial pride and expressly advocate that employees belonging to a racial or ethnic minority should support the union in order to protect themselves from prejudice and to advance their mutual interests so long as there is no intention to engender racial conflict or promote hatred of any other racial or ethnic group. See generally Coca-Cola/Dr. Pepper Bottling Co., 273 NLRB 444 (1984); *20 Coca Cola Bottling Co., 232 NLRB 717, 718 (1977); Aristocrat Linen Supply Co., Inc., 150 NLRB 1427 (1965); Archer Laundry Co., 150 NLRB 1448 (1965). In the case at bar, the Union's campaign made no appeal to ethnic pride and, at most pointed out to Latinos why their vulnerable circumstances warranted unionization in particular. A similar union appeal passed muster in State Bank of India v. NLRB, 808 F.2d 526, 541 (7th Cir. 1986). There the Seventh Circuit upheld a Board decision finding non-objectionable a union leaflet that stated that the employer “is trying to keep depressed conditions and low wages for its employees, because most of you are of Indian nationality and other minority groups.” The court held that this leaflet did not seek to incite racial prejudice but rather urged a pro-union vote “to prevent discrimination.” Id. at 542 (emphasis in original). Therefore, a union accusation of an employer's racial or ethnic bias does not constitute an impermissible inflammatory racial appeal. To be sure, the Union here brought in mostly Latino, bilingual organizers to campaign among an 80% Latino work force comprised of a commensurate proportion of non-English speakers -- a sensible strategic decision. Cf. NLRB v. Baltimore Luggage Co., supra; (letters and speeches stressing what unions could do for black workers in workforce over 90% of which was black “must be a legitimate tactic in any pre-election campaign”). Moreover, there is no evidence that black and white workers were intended to be or were in fact excluded by the Union from its election drive. Cf. *21 NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 330-31 (5th Cir. 1991) (union use of Martin Luther King poster and Coretta Scott King letter in campaign among 96% black work force was proper; lack of white worker involvement was voluntary and not due to Union's exclusion); NLRB v. Sumter Plywood Corp., 535 F.2d 917, 924-29 (5th Cir. 1976) (though Union campaign “evinced only a minimal interest in the white voters” there was no policy to exclude them and no absolute exclusion in fact, and “we cannot expect the Union to have been unmindful that the electorate was almost 85% black”). The Employer makes much of its contention that the leaflet's statement concerning the Winesburg plant is untrue. However, a union need not prove the truth of a campaign statement that includes racial references so long as the remarks are not “so inflammatory as to make a fair election impossible.” Coca Cola Bottling Co., 232 NLRB 717, 718 (1977). In Beatrice Grocery Products, 287 NLRB 302 (1987), enf'd sub nom. Martha White Foods, Inc. v. NLRB, 872 F.2d 1026 (6th Cir. 1989), the Board held non-objectionable a union representative's accusation that the employer's general manager had called black workers “dumb niggers.” The Board assumed that this accusation was untrue, id. at 302 n. 1, 303, but found that it was nonetheless “not far off the mark as a characterization of the demeaning way the employees believed they were being treated,” and so was “arguably germane to the election.” Id. at 303. “Because the statement represented an effort to denounce racial prejudice in another (the Employer) rather than to incite *22 prejudice against a particular racial or ethnic group,” it “d[id] not constitute the kind of gratuitous appeal to racial prejudice that Sewell brands as © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... objectionable conduct.” Id. See also KI (USA) Corp., 309 NLRB 1063, 1064-65 (1991), enf't denied, 35 F.3d 256 (9th Cir. 1994). The case at bar reflects similar circumstances, and the same legal conclusion is warranted. In Bancroft Mfg. Co., 210 NLRB 1007 (1974), enf'd, 576 F.2d 436, 442 (5th Cir. 1975), cert. denied, 424 U.S. 914 (1976), the Board applied the Sewell standards to a statement by a union organizer that “if blacks did not stay together as a group and the Union lost the election all the blacks would be fired.” 210 NLRB at 1007. A rumor to the same effect circulated in the plant, and in three recent layoffs most of those laid off had been black. Id. The Board held that Sewell does not impose a burden on the Union to “establish the truthfulness of the prediction of a future event by [the union] who has no control over the event.” 210 NLRB at 1008. Finding that the union did not suggest that blacks were entitled to greater rights or benefits, that the remarks did not advocate votes against white employees and that they were noninflammatory, the Board concluded that the union statement was germane to the larger issue of “the advantages and disadvantages of the Union as a means of promoting economic security and job rights.” Id. at 1007-08. The Sewell rule, the Board emphasized, can apply only where “‘appeals or arguments can have no purpose except to influence the racial feelings of voters in the election.”’ *23 210 NLRB at 1008. See also Kresge-Newark, Inc., 112 NLRB 869, 871 (1955) (finding unobjectionable a union statement at an employee meeting that if the union lost the election the employer would lay off all black employees, so the only way to save their jobs was to vote for the union). In the case at bar, the “Case Farm Doesn't Care!” leaflet at most accused the Employer of replacing Amish workers with more easily exploitable Latino employees. The leaflet did not even predict that something comparable to what was described in Ohio would happen at Morganton, only that in order to prevent such a thing workers should vote for the Union. Moreover, unlike even the unobjectionable statements in Bancroft and Kresge-Newark, the leaflet was ambiguous regarding what specifically might befall a particular ethnic group; after all, it said that Latinos -- the dominant ethnic group at Morganton -- were hired at the Ohio plant. This too underscores that the intent and message of the leaflet, as captured in its headline, overall text and campaign context, were focused on general employer unfairness, not inflammatory appeals to ethnic or religious prejudice. And the leaflet's statements, as we have shown, were germane to the consistent and overarching campaign issues stressed by the Union. In any event, in the case at bar the Employer did not demonstrate that the leaflet was untrue. The Employer relied on double hearsay when witnesses with direct knowledge and actual records were available to it, and the Board pointedly declined to credit the Employer's unreliable evidence. (See J.A. 337-38.) *24 Moreover, the facts even as presented by the Employer provided some basis for the Union's statement about the Ohio plant: the Amish work force had dwindled from. 62 to 2 over a few years; the Employer had ceased recognizing Amish holidays and did not restore them in order to stem the Amish attrition; and the Company did hire Latinos in Ohio for the first time after most of the Amish had left. It is certainly fair to conclude that, at least, the Company in fact did nothing effective to stem the Amish employee departures and capitalized on an influx of Latino workers. Compare Air Express Corp., 289 NLRB 608, 609 (1988), where it was alleged that the employer's operations manager had declared his intention to “terminate all the f–––––– Cubans” -- Cubans making up a majority of the work force -- and repeatedly had referred to “f–––––– Cubans.” This was a substantial distortion of what the official actually said, but the Board held there was no breach of Sewell standards and the official nonetheless (if unwittingly) had introduced the topic. See also Bancroft Mfg. Co., Inc., 210 NLRB at 1007-08 (past layoffs of only black employees provided basis for union prediction of future racially-based employer actions). In further evaluating the “Case Farms Doesn't Care!” leaflet, it bears emphasis that the Morganton Latino employees were largely illiterate, including in Spanish, most of the Guatemalans spoke non-Spanish dialects, and virtually none of the Latinos could read or understand English. (Also, the Spanish version of the leaflet described only a partially Amish workforce *25 in Ohio.) Two Latino employee witnesses had no idea what “Amish” meant. There is no evidence that there was any repetition of the Union's obscure reference to the Amish, that the leaflets engendered any further employee consideration, or that they were likely to under the circumstances. Indeed, the level of employee ignorance that the Employer claims the Union preyed on provides strong reason to discount the possibility that most of these workers even learned the content of this leaflet or, if they did, understood its reference to the Amish. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... The facts in Zartic, Inc., on which the Employer so heavily relies, differ starkly from those in the case at bar. In that case the union deliberately created a racially charged atmosphere -- as evidenced by a near-violent eruption at a captive audience meeting -- by repeatedly playing and discussing among the largely Hispanic work force a tape recording of a management official's remark denigrating Hispanics. 315 NLRB at 496-96. After creating that atmosphere the union circulated two leaflets with graphic photographs concerning the Ku Klux Klan's asserted connections with the employer during a prior strike -- leaflets intended solely to make a “sustained [ethnic] appeal” to “exploit ethnic fears of the Hispanic employees by making a visceral connection between the KKK and working conditions,” which was “inflammatory, gratuitous and irrelevant to any bona fide campaign issue.” Id. at 498. As explained fully above, none of these elements is present in the case at bar. The Board's *26 decision below, which likewise distinguished Zartic, simply does not depart from Zartic as the Employer claims. (See J.A. 340.) Because the Employer cannot fit this case under the Sewell rubric, the Union's campaign must be judged under the Board's longstanding declination to overturn representation elections on the basis of misrepresentations, falsehoods and other such campaign propaganda by unions and employers. See generally Midland National Life Insurance Co., 263 NLRB 127 (1982). We adopt the NLRB's fuller explication of this doctrine in its brief. Racially-based remarks that are permissible under Sewell and its progeny are fully protected by the Midland doctrine. State Bank of India v. NLRB, 808 F.2d at 54; NLRB v. Utell International Inc., 750 F.2d 177, 178-79 (2d Cir. 1984); Peerless of America, Inc. v. NLRB, 576 F.2d 119, 125 (7th Cir. 1978); Bancroft Mfg. Co., Inc., 576 F.2d at 442. Indeed, in NLRB v. Herbert Halperin Distributing Corp., 826 F.2d at 290, in which this Court held that certain raciallybased remarks did not breach the governing legal standards, the Court observed that “[a]n election by its nature is a heated affair,” and “the Board will not set aside an election unless an atmosphere of fear and coercion rendered free choice impossible.” Id. As this Court more recently recognized: [I]t is clear that “clinical asepsis is an unattainable goal in the real world of union organizational efforts.” NLRB v. Sumter Plywood Corp., 535 F.2d 917, 920 (5th Cir. 1976), cert. denied, 429 U.S. 1092, 97 S. Ct. 1105, 51 L.Ed.2d 538 (1977). Indeed, “exaggerations, hyperbole, and appeals to emotions are the stuff of which election *27 campaigns are made.” Schneider Mills, Inc. v. NLRB, 390 F.2d 375, 379 (4th Cir. 1968) (en banc). NLRB v. VSA, Inc., 24 F.3d 588, 595 (4th Cir.) (footnote omitted), cert. denied, 115 S. Ct. 635 (1994). In the case at bar, these are the most pejorative labels that could be applied to the Union leaflet at issue. 3 II. This Court Lacks Jurisdiction Over Case Farms' Argument That The Hearing Officer Improperly Excluded Relevant Evidence The Employer argues that the Hearing Officer improperly excluding evidence of the Union's “intent” and the “likely effect” of the “Case Farms Doesn't Care!” leaflet and other conduct. (Emp. Br. at 28-37.) But this Court has no jurisdiction to consider this argument, because the Employer did not include it in its exceptions to the Board below from the Hearing Officer's report. 4 Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(c), which governs judicial review of NLRB orders in unfair labor practice cases, provides: *28 No objection that has not been urged before the Board, its member, agent or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The Employer's failure to raise its evidentiary objections to the Hearing Officer's decision in its exceptions to the Board forecloses consideration of them for the first time in this Court. See Woelke Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982); NLRB v. Sandpiper Convalescent Center, 126 LRRM 2204, 2208 (4th Cir. 1987); NLRB v. Daniel © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... Construction Co., 731 F.2d 191, 198 (4th Cir. 1984); Rosslyn Concrete Construction Co. v. NLRB, 713 F.2d 61, 63 (4th Cir. 1983); NLRB v. Cast-a-Stone Products Co., 479 F.2d 396, 397-98 (4th Cir. 1973); NLRB v. Electro Plastic Fabrics, Inc., 381 F.2d 374, 376 (4th Cir. 1967). The Employer suggests no “extraordinary circumstances” to exempt it from this jurisdictional bar; rather, it ignores this issue altogether -- thereby waiving any exemption argument as well. Nor could any such circumstance be imagined here, where the issue concerns adverse evidentiary rulings obviously known to the Employer when it excepted to the report of the Hearing Officer who rendered them. We acknowledge that the Employer's brief to the NLRB did complain that the Hearing Officer refused to allow witnesses Hector Reyes, Jamie White and Elias Martinez from responding to some questions (Brief at 32-36), and that these are among the evidentiary exclusions the Employer now places at issue. (See Emp. Br. at 31-32, 34.) But the Employer failed in its *29 exceptions to raise this due process claim specifically and sought no relief for it, such as a remand to adduce the evidence on the record. (Nor does it request remand in this Court.) This is insufficient to preserve the issue for this appeal. See Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376, 1382-83 (8th Cir. 1993). Even if the Employer could pursue these arguments now, none of the testimony it sought would have aided the Board in determining the Union's “intent” or the leaflet's “likely effect.” Most of the excluded testimony would have consisted of pure speculation, not evidence of actual fact, and so not fairly within Fed. R. Evid. 701. 5 The record is replete with evidence adduced by the Employer about the actual background and knowledge of the Latino employees. The Board was fully able to exercise its judicial function and apply, based on ample evidence before it, the standards in Zartic and other cases that it found relevant. Accordingly, the Court should not disturb the NLRB's decision below that the Union's campaign and leaflet impermissibly interfered with the election. III. There Was No Atmosphere Of Fear And Coercion Otherwise The Employer seeks to bolster its leaflet-based argument by conjuring up a “volatile” atmosphere of “fear” that the leaflet *30 purportedly capitalized on. The record, however, is utterly devoid of support for that description; the “cumulative effect” of nothing is nothing. A. The Incidents Involving union organizers Created No Such Atmosphere As the Board held, neither the incident involving Jesyka Martinez nor the incident involving Abelino Mendoza Montejo involved objectionable conduct by the Union, let alone conduct that would generate a “volatile” or otherwise fear-laden atmosphere. Martinez was not an Employer representative or agent; rather, she was a virulently anti-Union employee who wholly initiated the arguments with Merino and various fellow employees on July 7. The Union could hardly have set out to create a coercive atmosphere when Martinez instigated the exchanges. Nor does Board law proscribe a Union representative from engaging in even heated discussion with an anti-union employee concerning the union's campaign and that worker's own views. And Merino's repetition of Martinez's “lazy bums” remark does not constitute an impermissible racial appeal under Sewell and its progeny for all the reasons discussed above. The Board found that no disturbance occurred, and the mere fact that police arrived on the scene, absent explanation why or proof of a disturbance, does not a volatile atmosphere make. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... Regarding Montejo, the Employer's passing mention of this incident (Emp. Br. at 45-46) does not even address, let alone undermine, the Board's factual findings about it. Eschewing any *31 effort to rehabilitate Montejo as a witness, the Employer instead quotes the hearsay testimony of another employee about Montejo's description of his conversation with Merino. But there is no “authority which suggests that the result of an election can be set aside because of a false rumor which was circulated by [an] adherent of the losing side.” Beaird-Poulan Division, Emerson Electric Co., 247 NLRB 1365, 1370 (1980), enf'd, 649 F.2d 589 (8th Cir. 1981). And there is no evidence that any other employee heard about Montejo's discredited characterization of this incident. “[T]elling only one employee of [a] threat is not probative evidence of dissemination.” Yukon Manufacturing Co., 310 NLRB 324, 327 (1993). Yet dissemination is a prerequisite to a finding that an atmosphere of fear and coercion existed. See Metz Metallurgical Corp., 270 NLRB 889 (1984); Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). B. The Incidents Involving Unknown Third Persons Created No Such Atmosphere In evaluating campaign conduct, less weight is accorded to the conduct of non-parties such as rank-and-file employees than to that of the union and the employer involved, because third parties are not subject to ordinary deterrents and their actions lack institutional force. NLRB v. Herbert Halperin Distributing Corp., 826 F.2d at 290. An election will thus be set aside for third-party conduct only if “the election was held in a general atmosphere of confusion, violence, and threats of violence, such as might reasonably be expected to generate anxiety and fear of reprisal, to render impossible a rational uncoerced expression of *32 choice as to bargaining representation.” Methodist Home v. NLRB, 596 F.2d 1173, 1183 (4th Cir. 1979). Id. See also Dunham's Athliesure Corp., 315 NLRB 689 (1994); Southland Containers, Inc., 312 NLRB 1087 (1993); Vitek Electronics, Inc., 368 NLRB 522, 529 (1984), m'fied, 763 F.2d 561 (3rd Cir. 1985). The incidents involving employee Crawford do not come close to satisfying this standard. First, with respect to the July 11 automobile incident, Crawford's speculative insistence that she was followed by “Union organizers” simply lacks any record support, as the Board found, and the Employer makes no effort to show otherwise. And even assuming Crawford was followed that evening, the record is barren of evidence that word of this incident circulated among employees before the election the next day. Again, absent dissemination, no coercive atmosphere can arise. Crawford's testimony concerning knife-waving and chicken parts-throwing is just as empty of force. Crawford labelled some of the actors as Union supporters, but she based that description solely on hearing occasional remarks by them about the Union and she described them no further by appearance or name. There is no evidence at all that this behavior, even assuming it occurred, was linked in any manner to the Union campaign, let alone that it was attributable to the Union itself -- regardless of the Union views of the employees involved. *33 CONCLUSION Accordingly, for the reasons set forth above, the Union respectfully submits that the Court should grant the NLRB's petition to enforce its order in No. 96-1566 and deny Case Farms' petition to deny enforcement of it in No. 96-1402-L. Footnotes The Employer asserts that “[t]he Union held all-Hispanic meetings” (Employer Brief (“Emp. Br.”) at 5), but the record reflects 1 only the fact that Mexican and Guatemalan employees were among the attendees at one particular Union meeting. See J.A. 234. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 CASE FARMS OF N.C., INC., Petitioner/Cross-Respondent,..., 1996 WL 33455026... 2 3 4 5 Employee Baltazar Garay testified that Montejo told him that Merino told Montejo that if the Company won that she was going to send him to immigration. (J.A. 209.) Garay was not present at the conversation (Hearing Transcript at 505, 508) and there is no evidence that any other employee heard anything about the conversation. It is telling that the Employer, evidently aware (despite its hyperbole) of the weakness of its principal argument, suddenly shifts focus and contends that the Union's leaflet planted fear not of any ethnic group but “of being ‘fired’ by Case Farms.” Emp. Br. at 41 (emphasis in original). The Employer contends that this is objectionable, relying on Jamesway Corp. v. NLRB, 676 F.2d 63 (3rd Cir. 1982). But that decision applied the Board's then-extant rule that campaign misrepresentations could warrant overturning a Board election -- the doctrine that Midland National Life Insurance Co. has since overruled. See “Employer's Exceptions to Hearing Officer's Report and Recommendations on Objections” and “Brief in Support of Employer's Exceptions,” both filed with the Board on September 26, 1995. We note also that Board proceedings, contrary to the Employer's suggestion, are not bound by the Federal Rules of Evidence. See Buffalo Neighborhood Housing Services, Inc., 267 NLRB 514 n.1 (1983). 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. 15