The U.S. Court of Appeals for the Fourth Circuit has rejected an employer's attempt to set aside a union election based on the union's use of ethnic appeals to obtain votes. During a union campaign at a Case Farms poultry processing plant in Morganton, North Carolina, where approximately eighty percent of the 514 plant employees who were eligible to vote in the election were Latino, the National Poultry Workers Organizing Committee of the AFL-CIO distributed leaflets which read:
Case Farms Doesn't Care! 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.
The flier was distributed to the employees in both English and Spanish. The union won the representation election by a vote of 283 to 183. Case Farms attempted to set aside the election, primarily on the grounds that the flier was an inflammatory appeal to race or ethnicity, and that it was a "misrepresentation designed to generate fear of an 'ethnic cleansing' among the non-English-speaking Latino aliens, such as the one allegedly experienced by the Amish."
The Fourth Circuit Court of Appeals rejected these arguments in Case Farms of North Carolina, Inc. v. NLRB (October 23, 1997). Although the Fourth Circuit recognized that a deliberate and sustained appeal to racial prejudice could make a reasoned choice of a bargaining representative impossible, itfound that the union's references to the Amish and Latinos in Ohio were neither inflammatory nor sustained enough to taint the election.
The Fourth Circuit distinguished the union's flier from the "inflammatory" racial or ethnic statements which had tainted prior elections that courts had overturned. According to the Fourth Circuit, those statements involved either appeals to the racial or ethnic prejudices of the workers themselves (such as "us Blacks were out in the cotton field while they, the damned Jews, took their money from the poor hardworking people" or "we beat the Japs after Pearl Harbor and we can beat them again") or attempts to portray an employer as bigoted (such as falsely accusing the employer of giving money to the Ku Klux Klan). Rather than appealing to racial prejudice or accusing Case Farms of bigotry, the court reasoned, the flier "argued for employee solidarity to prevent job loss and mistreatment." The court explained further:
Some 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.
The Case Farms decision draws a very fine line between permissible and impermissible appeals to race and ethnicity during union campaigns. In the aftermath of this ruling, employers with substantial numbers of minority workers should expect union organizers to pay increased attention to racial and ethnic issues during campaigns. Additionally, as the number of Latino workers in the Carolinas steadily increases, employers should assess their ability to communicate with Spanish-speaking workers and detect potential employment issues among their Latino employees.