PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CASE FARMS OF NORTH CAROLINA,

INCORPORATED,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

No. 96-1402

NATIONAL POULTRY WORKERS

ORGANIZING COMMITTEE,

Intervenor.

THE NORTH CAROLINA POULTRY

FEDERATION,

Amicus Curiae.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

CASE FARMS OF NORTH CAROLINA,

No. 96-1566

INCORPORATED,

Respondent.

THE NORTH CAROLINA POULTRY

FEDERATION,

Amicus Curiae.

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board.

(11-CA-16814)
Argued: March 3, 1997

Decided: October 23, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and

GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Petition denied and order enforced by published opinion. Judge

Michael wrote the opinion, in which Judge Goodwin joined. Judge

Williams wrote a separate concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: David Parks Hiller, MILLISOR & NOBIL, Columbus,

Ohio, for Petitioner. David A. Seid, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent. Laurence

Edward Gold, Washington, D.C., for Intervenor. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General

Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,

Frederick C. Havard, Supervisory Attorney, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Respondent. Theodore

T. Green, Washington, D.C., for Intervenor. Kevin Sturm,

EDWARDS, BALLARD, BISHOP, STURM, CLARK & KEIM,

P.A., Spartanburg, South Carolina, for Amicus Curiae.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Case Farms of North Carolina, Inc. petitions for review of a

National Labor Relations Board order certifying the results of a union

representation election held July 12, 1995, at the Case Farms poultry

processing plant in Morganton, North Carolina. Case Farms contends

that the election was irrevocably tainted by what it perceives as an

 2
appeal to "ethnocentric fears" made in a flier distributed by the

National Poultry Workers Organizing Committee, Affiliated with the

Laborers' International Union of North America, AFL-CIO (the

Union). The Board overruled the company's objections to the election

and now seeks to enforce an order requiring Case Farms to recognize

and bargain with the Union. Because the Board was within its discretion in overruling Case Farms' objections, we deny the company's

petition for review and enforce the Board's order.

I.

Case Farms operates a poultry processing plant in Morganton,

North Carolina. Roughly eighty percent of the 514 plant employees

who were eligible to vote in the representation election were Latino,

and of the Latinos, ninety percent were Guatemalan. More than seventy percent of the eligible employees were aliens.

On May 15, 1995, approximately 200 employees at the Morganton

plant began a work stoppage to protest wages and working conditions.

The protesting employees "form[ed] in front of the plant," where they

remained for about an hour until they were asked to leave. J.A. 67.

Three of these employees were arrested, however, apparently at the

instance of Case Farms. On that first day the employees presented the

company with a petition outlining their grievances, which included

claims that Case Farms was paying low wages, refusing sufficient

bathroom breaks, speeding up the chicken (production) line, threatening employees who sought medical attention, charging employees for

certain equipment, and firing employees who registered complaints.

The protesting employees later obtained a parade permit and had a

"demonstration parade in front of the plant" on the third day, May 17,

1995. J.A. 67. The work stoppage ended on May 18.

Soon thereafter the Union began an organizing campaign at the

plant. As part of its campaign, the Union distributed at least twelve

different leaflets, most printed in English and Spanish. One of the

leaflets read as follows:

Case Farms Doesn't Care!

This year they had three people arrested.

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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.

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

J.A. 304 (bold in original) (hereinafter Amish flier). The Amish flier

was also distributed in Spanish.1 Other fliers decried current working

conditions, compared Case Farms unfavorably with other poultry processors, and argued that the Union would improve the workers' situation.

On July 7, 1995, five days before the election, Jesyka Martinez, a

Case Farms employee who was against the Union, got involved in a

heated argument with union organizers. According to the organizers,

whose testimony was credited by the Board's hearing officer, Martinez came out of the plant after work and took a leaflet from one of

them. She then crumpled the leaflet, threw it to the ground, and pulled

aside two of the union organizers. Martinez told the organizers that

_________________________________________________________________

1 According to testimony by a Case Farms witness, the Spanish version

differed from the English version. While the English version states that

Case Farms fired the entire Amish work force, the Spanish version allegedly states that "Case Farms fired all the workers, [and only] some of

them w[ere] Amish." J.A. 131 (testimony of Jaime White).

 4
the Union was only there to cause problems. The organizers told Martinez they could not talk to her right then because they were handing

out leaflets, but they would like to talk to her at another time. Martinez got into her car and left. Ten minutes later she returned and began

yelling at the departing workers, telling them that the Union was just

there to take their money. She told the workers not to take the Union

leaflets and jerked leaflets out of the hands of some of the workers.

One of the organizers then asked Martinez why, if she really cared

about the workers, she had said the day before that the Guatemalan

employees were "nothing but lazy bums" and"when they don't do the

job, she had to do the job for them." J.A. 220. By this point a crowd

of workers had gathered; estimates on the number range from forty

to 300. Compare J.A. 230 (testimony of union organizer Elias Martinez) (estimating 40 to 50 people) with J.A. 171 (testimony of Jesyka

Martinez) (claiming 270 to 300 people). Martinez denied making the

comments and began to argue with some of the assembled workers.

The police were eventually called to the scene and escorted Martinez

to her car.

The representation election was held on July 12, 1995, and the

Union won by a vote of 238 to 183. Case Farms filed seven objections

to the election, and an extensive hearing was held to resolve the issues

of fact relating to those objections. After the hearing, the Board's

hearing officer issued a report finding "that the Union did not engage

in objectionable conduct" and recommending that Case Farms' objections be overruled. J.A. 343. The Board adopted the hearing officer's

findings and recommendations and certified the Union as bargaining

representative for the employees at the Morganton plant.

In order to obtain judicial review of the Board's certification, Case

Farms refused to bargain with the Union. The NLRB General Counsel

brought an unfair labor practice claim against Case Farms based on

this refusal to bargain. Case Farms defended by arguing that the

Union had been improperly certified. The Board granted summary

judgment against Case Farms and ordered the company to bargain.

Case Farms petitioned this court for review of the Board's final order,

and the Board cross-petitioned for enforcement of its order.

II.

Although Case Farms made seven objections concerning the July

12 election, its briefs to us focus on the Union's distribution of the

 5
Amish flier. Case Farms claims that this flier was a misrepresentation

designed to generate fear of an "ethnic cleansing" among the nonEnglish-speaking Latino aliens, such as the one allegedly experienced

by the Amish. The Board found the flier did not constitute an inflammatory appeal to race or ethnicity, and therefore the flier provided no

grounds for overturning the election. In considering this, we recognize that "[t]he Board's determination regarding the validity of an

election `is within the sound discretion of the Board' and `should be

reversed only when [the Board] has abused its discretion.'" NLRB v.

VSA, Inc., 24 F.3d 588, 592 (4th Cir. 1994) (quoting NLRB v. Manufacturer's Pkg. Co., 645 F.2d 223, 226 (4th Cir. 1981)).

The Board's stated goal in regulating the conduct of representation

elections is 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

N.L.R.B. 124, 127 (1948), enforced, 192 F.2d 504 (6th Cir. 1951).

The Board has recognized, however, that elections"do not occur in

a laboratory where controlled or artificial conditions may be established" and that, accordingly, "the actual facts [must be assessed] in

the light of realistic standards of human conduct." The Liberal Market, Inc., 108 N.L.R.B. 1481, 1482 (1954). This tension between the

ideal and reality is evidenced by the Board's policy towards misrepresentations in campaign messages. From 1962 to 1982 the Board

changed its policy concerning misrepresentations four times. See

Hollywood Ceramics Co., Inc., 140 N.L.R.B. 221, 224 (1962) (holding that elections may be overturned based on last-minute misrepresentations involving a substantial departure from the truth); Shopping

Kart Food Market, Inc., 228 N.L.R.B. 1311, 1313 (1977) (holding

that it would no longer set aside elections based on misrepresentations); General Knit of California, Inc., 239 N.L.R.B. 619, 620 (1978)

(returning to the Hollywood Ceramics standard); Midland Nat'l Life

Ins. Co., 263 N.L.R.B. 127, 131 (1982) (returning to the Shopping

Kart standard). In Midland the Board finally settled on the standard

that "we will no longer probe into the truth or falsity of the parties'

campaign statements, and that we will not set elections aside on the

basis of misleading campaign statements." Id. at 133. The Board

reached this holding in part in order to "remove[ ] impediments to

free speech by permitting parties to speak without fear that inadvertent errors will provide the basis for endless delay or overturned elec-

 6
tions." Id. at 132. The Board believed that its "`rules in this area must

be based on a view of employees as mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it.'" Id. at 132 (quoting Shopping Kart, 228 N.L.R.B. at 1313).

Case Farms takes great pains to establish that it did not fire Amish

workers from its Ohio plant, contrary to the claim of the Amish flier.

Although Case Farms acknowledges that virtually all of the Amish

workers had left its Ohio plant, the company asserts that the Amish

quit their jobs voluntarily. This assertion is unrebutted by the Union.

Midland, however, established that the truthfulness of campaign propaganda is generally irrelevant, and Case Farms implicitly admits that

the election cannot be overturned solely because there is a false statement in the Amish flier. See Reply Brief for Petitioner at 8-10.

Instead, the company argues that the Board has created an exception

to the Midland rule when the propaganda at issue, in addition to being

untruthful, appeals to "ethnocentric fears."

In Sewell Mfg. Co., 138 N.L.R.B. 66, 70 (1962), the Board established that "a deliberate, sustained appeal to racial prejudice" could

create conditions that "made impossible a reasoned choice of a bargaining representative." During the representation campaign in Sewell

held in 1961, the employer distributed literature linking the union to

the NAACP. One of the employer's fliers pictured a white man, identified as a union leader, dancing with a black woman. Underneath the

picture was a story entitled: "Race Mixing Is An Issue As [Company]

Workers Ballot." Id. at 67. The Board set aside the election after finding that "the Employer's propaganda directed to race exceeded permissi[ble] limits and so inflamed and tainted the atmosphere in which

the election was held that a reasoned basis for choosing or rejecting

a bargaining representative was an impossibility." Id. at 72.

The Board recognized, of course, that matters of race and ethnicity

will often be important to a representation campaign. It therefore held

that "[s]o long . . . as a party limits itself to truthfully setting forth

another party's position on matters of racial interest and does not

deliberately seek to overstress and exacerbate racial feelings by irrelevant, inflammatory appeals, we shall not set aside an election on this

ground." Id. at 71-72. The Board has further affirmed and refined this

standard in cases following Sewell. In Baltimore Luggage Co., 162

 7
N.L.R.B. 1230 (1967), enforced, 387 F.2d 744 (4th Cir. 1967), the

Board held that the Sewell standard was not violated when civil rights

leaders spoke out in support of a union campaign by linking the civil

rights movement to the labor movement.

Consequently, in Sewell, we did not lay down the rule that

parties would be forbidden to discuss race in representation

elections. Rather, we set aside an election because the campaign arguments were inflammatory in character, setting

race against race -- an appeal to animosity rather than to

consideration of economic and social conditions and circumstances and of possible actions to deal with them.

Id. at 1233 (footnote omitted). The Board has made clear in the cases

following Sewell that appeals to race or ethnicity must be "inflammatory" in order to violate the Sewell standard. See Englewood Hospital,

318 N.L.R.B. 806, 807 (1995) ("In these cases[following Sewell] the

Board has consistently reiterated that `the rule in Sewell is applicable

only in those circumstances where it is determined that the "appeals

or arguments can have no purpose except to inflame the racial feelings of voters in the election."'" (quoting Bancroft Mfg. Co., 210

N.L.R.B. 1007, 1008 (1974) (quoting Sewell, 138 N.L.R.B. at 71))).

Accordingly, a party violates the standard set forth in Sewell only

if its campaign propaganda constitutes an inflammatory appeal to

racial or ethnic sentiment. Otherwise, the propaganda is unobjectionable under the permissive Midland standard."If . . . racial or sexual

remarks . . . do not form the core or theme of the campaign . . . and

if the remarks are not inflammatory, they should be reviewed [only]

under the standards applied to other types of misrepresentation." State

Bank of India v. NLRB, 808 F.2d 526, 541 (7th Cir. 1986) (alterations

in original) (quoting Peerless of Am., Inc. v. NLRB, 576 F.2d 119, 125

(7th Cir. 1978)). See also KI(USA) Corp. v. NLRB , 35 F.3d 256, 260

(6th Cir. 1994) (noting that the truthfulness and relevance of campaign propaganda is at issue only after the petitioning party "establishes a prima facie case that an election was unfair due to an

`inflammatory appeal' to racial feelings"); NLRB v. Utell Int'l, Inc.,

750 F.2d 177, 179 (2d Cir. 1984) ("We also agree with the other circuits that have passed on the issue that the Sewell test for truth and

relevancy does not apply here but rather is applicable only to inflam-

 8
matory racial appeals. In this view, false but non-inflammatory statements are reviewed according to the usual test for misrepresentations."); NLRB v. Bancroft Mfg. Co., Inc., 516 F.2d 436, 442 (5th Cir.

1975) (holding that if propaganda is "racially inflammatory," then

"the test for truth and relevancy must be made as Sewell describes;"

if the propaganda is not inflammatory, then "the statements should be

reviewed under the familiar standards applied to any other type of

alleged material misrepresentation").

Thus, the truth or falsity of the Amish flier may be put aside

because, as the Board found, "the materials distributed by the [Union]

did not constitute an inflammatory appeal to race or ethnicity." J.A.

347 n.1. The flier merely claims that the Amish workers at Case

Farms' Ohio plant were fired and replaced with Latino workers. It

does not claim that the Amish were fired because Case Farms was

prejudiced against the Amish; instead, it explicitly states that the

Amish were fired because Case Farms "could pay Latinos less and

treat them worse." The flier then asks, "How are we going to prevent

Case Farms from treating us like the Amish?" It answers, "If We

Want Case Farms to Treat Us with Dignity and Respect Then We

Must Unite for Change -- Vote Union YES." J.A. 304. The flier

makes no claim that Case Farms is bigoted or prejudiced against the

Amish, nor does it attempt to "inflame" the employees against another

racial or ethnic group.

The statements in the Amish flier are quite different from the

appeals held to be inflammatory in other cases. The majority of those

cases involve appeals to the racial or ethnic prejudices of the workers

themselves, often in the form of slurs or insults. See, e.g., M & M

Supermarkets, Inc. v. NLRB, 818 F.2d 1567, 1569 (11th Cir. 1987)

(employee referred to owners as "damn Jews" and said "[u]s Blacks

were out in the cotton field while they, the damned Jews, took their

money from the poor hardworking people"); NLRB v. Eurodrive, Inc.,

724 F.2d 556, 557 (6th Cir. 1984) (union organizer said that the white

employees needed the union to protect their jobs because they were

not protected by equal opportunity laws; he also promised that a white

employee fired for racial harassment of a black co-worker would be

rehired if the union won); NLRB v. Katz, 701 F.2d 703, 705 (7th Cir.

1983) (at a union rally a priest said the owners"are Jewish and

they're getting rich while we're getting poor," and "why should we

 9
make them rich because Jewish people are rich and we are poor and

killing ourselves for them;" an employee also alleged that "the Jews

marched in Skokie to keep the Blacks out"); NLRB v. Silverman's

Men's Wear, Inc., 656 F.2d 53, 55 (3d Cir. 1981) (union representative called a company vice president a "stingy Jew" at an employee

meeting); YKK (U.S.A.), Inc., 269 N.L.R.B. 82, 84 (1984) (repeated

references to management as "Japs" and statements such as "we beat

the Japs after Pearl Harbor and we can beat them again"). Cf. NLRB

v. Sumter Plywood Corp., 535 F.2d 917, 924-25 (5th Cir. 1976) (finding that "the major concern" for the Sewell line of cases "is that workers of one race not be persuaded to vote for or against a Union on the

basis of invidious prejudices they might have against individuals of

another race"). Attempts to portray an employer as bigoted have also

been found to be inflammatory in certain extreme cases. See

Carrington South Health Care Ctr., Inc. v. NLRB, 76 F.3d 802, 807

(6th Cir. 1996) (cartoons in a union flier "use[d] obvious images of

bondage or violence visited upon racial minorities by a white majority: a white man purchases a group of black . . . workers; a group of

workers labor as beasts of burden, pulling their superiors in a wagon

while being whipped; a black worker is to be summarily executed by

a white overlord"); KI (USA) Corp. v. NLRB , 35 F.3d 256, 257 n.1

(6th Cir. 1994) (union flier reproduced comments of a Japanese businessman calling American workers "lazy," "uneducated," and "halfwitted;" flier implied that businessman's views reflected those of the

Japanese management); Zartic, Inc., 315 N.L.R.B. 495, 496 (1994)

(union falsely accused employer of giving money to the Ku Klux

Klan). The Amish flier fits into neither of these categories: it makes

no appeal to racial prejudice, and it does not accuse Case Farms of

bigotry. The Amish flier cannot be considered inflammatory.

Case Farms tries several approaches to elude this somewhat obvious result, none of which are successful. It attempts to construe the

Amish flier as saying that "[t]he 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" and that

"[a]bsent Union protection, Case Farms will engage in a similar purge

of Hispanics in North Carolina." Brief for Petitioner at 22. This reading, however, differs wildly from the plain meaning of the flier itself.

There is no allegation in the flier that the Amish were fired as part

 10
of some program of "ethnic cleansing."2 As we noted above, the flier

explicitly states that the Amish were fired because Latinos could be

paid less and treated worse. Moreover, Case Farms cannot explain

why the firing of Amish workers and their replacement with Latinos

would incite fear of "ethnic cleansing" amongst a group of Latinos.

If there is any "ethnic" content to the flier at all, it is at most an

appeal to Latinos in North Carolina to avoid the fate of Latinos in

Ohio, namely, being paid less and treated worse. Case Farms makes

no claim that such an appeal would violate the Sewell standard, nor

could it. Both the Board and the courts have upheld more direct

appeals to ethnic solidarity. In State Bank of India, for example, a

union letter to employees claimed that the bank"is trying to keep

depressed conditions and low wages for its employees, because most

of you are of Indian nationality and other minority groups." State

Bank of India, 808 F.2d at 541. The court found that this appeal was

not inflammatory because it "urges the employees to vote for the

union not by appealing to and arousing their racial prejudice, but

rather by contending that the Bank itself was taking advantage of their

inability to protect their own interest because of their minority status."

Id. Similarly, in Bancroft a union organizer warned black employees

that "if the blacks did not stay together as a group and the Union lost

the election, all the blacks would be fired." Bancroft, 516 F.2d at 440.

The Fifth Circuit found this accusation to be untrue because there was

"no evidence that the Company intended to or did in fact treat its

black employees unfairly." Id. at 442. Nevertheless, the court upheld

the election results because "none of the disputed statements could be

characterized as racially inflammatory." Id. at 443. See also NLRB v.

Herbert Halperin Distrib. Corp., 826 F.2d 287, 289, 293 (4th Cir.

1987) (union supporters' remarks, such as "the white guys should get

together and help the black guys" and "those goddamn white boys --

they're gonna vote no with [the employer], they won't support the

blacks," did not "suggest an atmosphere inflamed by racial tension

nor do they represent a deliberate attempt by the union to divert the

_________________________________________________________________

2 The term "ethnic cleansing" refers to the elimination of a certain ethnic group from a country or region, accomplished by forced withdrawals

or genocide. See Editorial, Ethnic Cleansing, Boston Globe, Oct. 22,

1995, 1995 WL 5959713. The hearing officer found that Case Farms'

use of the term was "misplaced, misleading, and inappropriate." J.A. 330.

 11
employees from legitimate issues by insinuating an irrelevant appeal

to race"); Utell, 750 F.2d at 178-79 (accusations that the company and

company officers were racist "were not deliberate inflammatory

appeals designed to incite racial hatred"); NLRB v. Baltimore Luggage Co., 387 F.2d 744, 747 (4th Cir. 1967) (appeals by civil rights

leaders linking civil rights to unionization were a"legitimate tactic"

because they were "clearly not for the purpose and could not have had

the effect of exacerbating racial prejudices"). Cf. Sumter, 535 F.2d at

929 ("[S]ome degree of `consciousness-raising' will be permitted in

union organizing campaigns among ethnic groups which have historically been economically disadvantaged, as long as the ethnic message

becomes neither the core of the campaign nor inflammatory.").

Case Farms claims that the case of Zartic, Inc. , 315 N.L.R.B. 495

(1994), "virtually mirrors" this case and therefore offers relief. Brief

for Petitioner at 13. Like this case, Zartic also involved an attempt to

organize poultry processing plants that had a substantial number of

Latino employees. During the organizing campaign, an employee

secretly taped a discussion with a management official, who claimed

that another official had called the Latino employees "the closest

thing to animals they could be." Id. at 495. The union obtained a copy

of the tape and played it at several organizational meetings. An

employee then brought up the official's remarks at a question-andanswer session held by management; the employee, however, initially

attributed the remarks to the wrong official, who was present at the

session and denied making them. After additional questioning and

further denials, a disturbance ensued and the meeting was terminated.

Sometime after this disturbance, the union distributed two leaflets

relating to a strike held ten years earlier at another of the employer's

processing plants. One leaflet reproduced an article about the involvement of the Ku Klux Klan in the strike; about half of the space allotted to the article contained a picture of Klansmen in a picket line. A

second leaflet reproduced an article about a Latino employee at the

other plant who had been mysteriously killed about the same time as

the strike. At a meeting during which these leaflets were distributed,

a union organizer falsely claimed that the employer had given money

to the Klan. In actuality, the Klan had been picketing against the

employer, and the employer had obtained an injunction limiting the

Klan's activities. The organizer also claimed that the Klan had killed

the Latino employee; there had been rumors to this effect but no

 12
definitive proof. Based on these events, the Board found that the

union's representation campaign "constituted a sustained appeal to the

ethnic sensibilities of the Employer's Hispanic employees which was

inflammatory, gratuitous, and irrelevant to any bona fide campaign

issue." Id. at 498. The Board therefore refused to certify the union's

election victory and directed that a new election be held.

According to Case Farms, the Union campaign failed to meet the

standards for propaganda set forth in Zartic. First, Case Farms claims

that the Union's use of Jesyka Martinez's alleged derogatory comments about Guatemalans (they were "lazy bums," etc.) parallels the

use of the management official's comments about Latinos in Zartic.

Second, it claims that the Amish flier is similar to the fliers used in

Zartic. The circumstances in Zartic, however, are quite different than

the circumstances in this case. First, the derogatory statements were

used in different ways in the two cases. The union in Zartic repeatedly and deliberately used the official's statements to inflame ethnic

sentiment. See Zartic, 315 N.L.R.B. at 496 ("[I]t is clear on this

record . . . that the Union used the tape repeatedly as an organizing

tool in the weeks immediately preceding the election."). In this case,

however, the union organizers (in quoting Martinez) were responding

to a spontaneous encounter with an employee. There is no evidence

that the organizers had planned ahead of time to take advantage of

Martinez's remarks, nor did they make repeated use of the remarks.

Moreover, the remarks at issue in Zartic were made by management,

while in this case they were made by an employee.

The differences between the Amish flier and the fliers in Zartic are

even more significant. In Zartic the union produced fliers with large

pictures of the Klan, falsely linked the employer to the Klan, and

linked the Klan to the murder of an employee. In this case, the Union

claimed that Case Farms had fired Amish workers and replaced them

with Latinos. The appeals in Zartic were designed to make the

employees believe that the employer supported a bigoted and allegedly murderous organization, when in fact the employer had fought

against that organization. In the Amish flier in this case, the appeal

was designed to make the employees believe that one group of workers had been fired because the employer could pay another group of

employees less and treat that group worse. The union's campaign in

Zartic was a "sustained appeal to the ethnic sensibilities of the

 13
Employer's Hispanic employees which was inflammatory, gratuitous,

and irrelevant to any bona fide campaign issue." Id. at 498. The

Amish flier cannot be considered such an appeal. 3

As the Board recognized in Sewell, the ultimate question concerning representation campaigns is whether a party has"created conditions which made impossible a reasoned choice of a bargaining

representative." Sewell, 138 N.L.R.B. at 70. Although there is evidence that a claim made in the Amish flier was a misrepresentation,

the Board has recognized that employees are "mature individuals who

are capable of recognizing campaign propaganda for what it is and

discounting it." Midland, 263 N.L.R.B. at 132 (quoting Shopping

Kart, 228 N.L.R.B. at 1313); cf. Herbert Halperin, 826 F.2d at 292

("[W]e think that it is unrealistic to expect every election dialogue to

be completely sanitized."). The Union's organizing campaign was

based on the issues that first caused employee unrest at the Morganton plant: wages and working conditions. The fliers distributed by the

union in support of its campaign reflect these concerns. See, e.g., J.A.

309-10 (stating that every worker brings in $20,000 in profit to Case

Farms and arguing that Case Farms can afford to treat its workers better); J.A. 314-15 (describing worker mistreatment and advocating

change); J.A. 319-20 (describing the benefits that union dues provide); J.A. 321 (comparing wages and working conditions between

Case Farms and other poultry processors); J.A. 322-23 (arguing that

the union would make real changes in working conditions); J.A. 325

("It is only with the union that we can protect the rights for which we

have sacrificed and fought through work stoppages and arrests."). The

Amish flier was not an inflammatory appeal to ethnic sentiment. It

instead argued for employee solidarity to prevent job loss and mistreatment. That is a legitimate area for discussion in an organization

_________________________________________________________________

3 Case Farms also claims that Zartic represents a departure from the

Sewell standard. According to Case Farms, the Sewell line of cases only

concern appeals to racial prejudice, while Zartic created a new prohibition against appeals to ethnic fear. See Reply Brief for Petitioner at 6-7.

It is clear from the Zartic opinion, however, that the Board relied on

Sewell for its analysis. See Zartic, 315 N.L.R.B. at 497 (citing Sewell as

the "seminal case for analysis"); id. at 498 (stating that the leaflets and

the union organizer's contemporaneous comments "pushed the organizing campaign past the limits which Sewell permits").

 14
campaign. See Coca-Cola/Dr. Pepper Bottling Co. , 273 N.L.R.B.

444, 445 (1984) ("The question of whether employees have been

unfairly treated, for whatever reason, is always a legitimate topic of

discussion in a union campaign."). We conclude that the Board was

well within its discretion in denying Case Farms' objection concerning the Amish flier.

III.

Case Farms also asserts that the Board erred in overruling its final

objection, which stated that the "cumulative effect of the Union's misconduct" described in its first six objections deprived the employees

of an uncoerced choice. Brief for Petitioner at 43. Along with the

objection about the Amish flier, Case Farms' five other objections

alleged Union misconduct such as a threat to call the Immigration and

Naturalization Service as well as other intimidation tactics. The hearing officer examined the evidence of this alleged misconduct and recommended that all the objections be overruled. The Board agreed.

Case Farms does not now appear to contend that the Board reached

the wrong result on the five other objections, but rather the company

claims that the hearing officer failed to examine the cumulative

effects of the objections. However, the officer clearly stated that

"[b]ased on 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." J.A. 343. Since her extensive analysis of the individual objections demonstrated that they were without merit, there is no

reason to conclude that they compel a different result when considered as a whole.

IV.

We conclude that Case Farms presents no grounds for overturning

the results of the July 12, 1995, representation election. We therefore

deny Case Farms' petition for review and grant the Board's application for enforcement.

PETITION DENIED AND ORDER ENFORCED

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WILLIAMS, Circuit Judge, concurring:

I agree with the Majority's conclusion that the Amish flier did not

constitute an inflammatory appeal to race or ethnicity. See Majority

Op. at 8-9. Because the Amish flier passes muster under the permissive standard that this Court has adopted for misrepresentations, I also

agree that the Board's order must be enforced. See Majority Op. at 15.

I write separately, however, to express my concern with the Board's

apparent disregard for the decisions of the Circuit Courts.

In its order, the Board specifically adopted the findings made by

the hearing officer (J.A. at 346-47), which included a finding that

"[t]he current case is . . . on point with KI (USA) Corp., 309 N.L.R.B.

1063 (1992)" (J.A. at 339). Interestingly, the Sixth Circuit, using the

identical analysis employed by the Majority, denied enforcement of

the Board's order in KI (USA) Corp., 309 N.L.R.B. 1063 (1992),

because it found that the Union improperly appealed to racial prejudice during its election campaign. See KI (USA) Corp. v. NLRB, 35

F.3d 256, 259-60 (6th Cir. 1994). Presumably, the Board continues to

believe that its order in KI (USA) Corp., and not the subsequent decision of the Sixth Circuit, is correct because it nevertheless concluded

that the Amish flier "did not constitute an inflammatory appeal to race

or ethnicity" (J.A. at 347 n.1).

I realize, of course, that outside the Sixth Circuit the Board is free

to argue that its decision in KI (USA) Corp., 309 N.L.R.B. 1063

(1992), was correctly decided. The Board is not free, however, to

automatically assume that its decisions, whether enforced or not, are

the law in this Circuit. See, e.g., Industrial Turnaround Corp. v.

NLRB, 115 F.3d 248, 254 (4th Cir. 1997) (noting that NLRB erred in

assuming that its decision in Deklewa was the law in our Circuit);

United States Dep't of Energy v. FLRA, 106 F.3d 1158, 1165 (4th Cir.

1997) (Luttig, J., concurring) (reproving the FLRA for refusing to follow our Circuit's precedent). Because the hearing officer relied

almost exclusively upon an unenforced order, and because neither the

hearing officer nor the Board cited one decision by this Court, I cannot help but question what the Board considers binding in this Circuit.

In any event, I believe that the facts in the current case are distinguishable from the facts in KI (USA) Corp., 309 N.L.R.B. 1063

(1992). If the facts were "on point," as found by the hearing officer

 16
and adopted by the Board, I would deny enforcement of the Board's

order for the same reason the Sixth Circuit declined to enforce the

Board's order in KI (USA) Corp. v. NLRB, 35 F.3d 256, 259-60 (6th

Cir. 1994).

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