1. What is the rationale for the Shopping Kart–Midland National Life Insurance decision?
2. Was the employees’ right to free and fair choice affected by the focus sentence beginning with “THE U.S. SUPREME [sic] HAS HELD…” because the misrepresentation was so pervasive and the deception so artful that employees would not be able to separate the truth from the untruth?

[E.A. Sween distributes food, primarily to 7-Eleven stores in the Chicago area. The Teamsters union petitioned the Board to conduct a representation election for the company’s truck drivers, and an election was scheduled for August 29, 2008. On the evening of August 28, before the drivers left for their evening shifts, the union distributed to the drivers a onepage flyer touting the benefits the union could bring. Of the 38 eligible voters, 26 voted for the union and 12 voted against. E.A. Sween filed an objection with the Board. It contended that the flyer “used forged and misrepresented documents and quotes” that were falsely attributed to the Supreme Court. According to the company, these quotes were presented in such a manner that employees would not have been able to recognize them as union propaganda. E.A. Sween also argued that it had insufficient time to rebut the false information. It contended that the flyer improperly influenced the employees to vote for the union. The hearing officer found that the flyer did not interfere with the employees’ ability to make a free choice and recommended that the Board certify the union. On November 19, 2010, the Board, by a three-member panel, issued a decision finding that the company’s refusal to bargain violated Sections 8(a)(1) and (5). The Board ordered the company to bargain with the union. With E.A. Sween persisting in its refusal to bargain, the Board filed this application for court enforcement.]

LEFKOW, D. J. …

E.A. Sween argues … that the election should be set aside because the Union’s campaign flyer was deceptive and misleading and because the flyer was a forgery. Under Midland National Life Ins. Co., the Board will not “probe into the truth or falsity of the parties’ campaign statements, [or] set elections aside on the basis of misleading campaign statements. [It] will, however, intervene in cases where a party has used forged documents which render the voters unable to recognize propaganda for what it is.” The rationale for the rule is that employees are “‘mature individuals who are capable of recognizing campaign propaganda … and discounting it’ ”Id. at 130 (quoting Shopping Kart Food Market, Inc., 228 N.L.R.B. 1311, 1313 (1977)).

E.A. Sween urges focus on the first sentence: “THE U.S. SUPREME [sic] HAS HELD THAT ALL [sic] TERMS AND CONDITIONS OF EMPLOYMENT BY LAW MUST REMAIN THE SAME UNTIL AND DURING CONTRACT NEGOTIATIONS OR APPROVED BY EMPLOYEES.” Irrespective of whether it is deceptive or misleading, the sentence is certainly not a “forgery”—a counterfeit—of a Supreme Court decision. It is not explicitly attributed to the Supreme Court; neither does the quoted portion reflect language or syntax a learned justice would possibly use.

Failing that, E.A. Sween argues that the first sentence led employees to believe that the quoted text was the holding of a Supreme Court case, a deception that justifies our adopting the Sixth Circuit’s exception to Midland in circumstances “where no forgery can be proved, but … the misrepresentation is so pervasive and the deception so artful that employees will be unable to separate truth from untruth and … their right to free and fair choice will be affected.” NLRB v. Hub Plastics, 52 F. 3d 608, 612 (6th Cir. 1995). As this court has previously recognized, however, there is no need to determine the limits of Midland where the “situation … fall[s] squarely in the heartland of the Midland doctrines—statements regarding a campaign issue that voters could easily recognize as propaganda.” Far from artfully deceptive, the first sentence makes no sense. Apparently the author recognized as much because the second sentence explains the first with an essentially correct statement of the law: “THAT STATEMENT MEANS THAT IF YOU ARE DUE A SCHEDULED RAISE AT ANY TIME DURING THE CONTRACT NEGOTIATION PERIOD, BY LAW THE COMPANY MUST GIVE YOU THAT RAISE.” Whether the first sentence is misleading or simply meaningless, the second sentence clearly explains what the Union intended to convey.

The findings of the Board that the statement was not a forgery and, although misleading, did not justify setting aside the election, is neither without substantial evidentiary basis in the hearing record nor based on an incorrect statement of the law.

Conclusion

Accordingly, the Board’s application for an order judicially enforcing its entire order is granted.