Bio-Medical of Puerto Rico

National Labor Relations Board - Board Decisions

Apr 3, 1984

269 N.L.R.B. 827 (N.L.R.B. 1984)

BIO-MEDICAL OF PUERTO RICO
Blo-Medical Applications of Puerto Rico, Inc. and
Union General de Trabajadores de Puerto Rico,
Petitioner. Case 24-RC-6621
3 April 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 August 1981 the Regional Director for
Region 24 of the National Labor Relations Board
issued his Report and Recommendation on Objec-
tions in this proceeding.' The Employer filed ex-
ceptions, with a supporting brief, to the Regional
Director's recommendation to overrule all six of
the Employer's objections. On 16 February 1982
the Board issued its Decision and Order sustaining
the Regional Director's recommendations with re-
spect to Employer's Objections 1,2,3, and 5, and di-
rected that a hearing be conducted on the alleged
agency status of employees Manuel Muniz (M.
Muniz) and Edwin Muniz (E. Muniz), and Employ-
er's Objections 4 and 6. A hearing was held before
a duly designated hearing officer and, on 2 July
1982, the hearing officer issued his Report and
Recommendations on Objections, in which he
found that M. Muniz and E. Muniz were not
agents of the Petitioner and recommended that
Employer's Objections 4 and 6 be overruled.
The National Labor Relations Board, by a three-
member panel, has considered the pertinent objec-
tions and the hearing officer's report recommend-
ing disposition of same. The Board has reviewed
the record in light of the Employer's exceptions
and the brief filed in this proceeding and has decid-
ed to affirm the hearing officer's findings and rec-
ommendations only to the extent consistent here-
with. 2
1. With respect to the agency issue, the hearing
officer found that M. Muniz and E. Muniz were
not Petitioner agents and that their attempts to
identify themselves with the Petitioner suggested
that they were no more than ardent union support-
ers. We disagree.
We first note certain facts as background to our
decision. The Employer operates health care facili-
ties in Mayaguez, Ponce, and Hato Rey, Puerto
Rico. In the spring of 1981,3 the Petitioner con-
The election was conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 55 for and 43 against the Petitioner, with
3 challenged ballots, an insufficient number to affect the results.
2 In the absence of exceptions, we adopt, pro forma, the recommended
overruling of Employer's Objection 4.
3 All dates are in 1981 unless indicated otherwise.
ducted union organizational efforts at all three fa-
cilities. M. Muniz and E. Muniz, brothers and al-
leged agents of the Petitioner, campaigned actively
for the Petitioner during this period as avowed
members of the Petitioner's in-plant organizing
committee. Although it is uncontroverted that the
Muniz brothers' participation in the Petitioner's
campaign was extensive, the nature of their partici-
pation and their status in relation to the Petitioner
are disputed. In addition to its contention that M.
Muniz and E. Muniz were apparent agents, the
Employer also alleges that, because the in-plant or-
ganizing committee circulated a leaflet under the
Petitioner's logo and letterhead without a Petition-
er official's signature, the in-plant organizing com-
mittee was vested with authority by the Petitioner
to act as the Petitioner's independent agent.
Employer witnesses alleged that the Muniz
brothers' campaign activities reflected their appar-
ent agency status, as follows: (1) The Muniz broth-
ers visited the Employer's Mayaguez facility "on
endeavors for the Union," even though they were
employed at the Hato Rey facility; introduced
themselves as representatives of the Petitioner; and
requested permission to post union literature on the
Employer's bulletin boards and to greet the em-
ployees there; (2) they introduced themselves as
the Petitioner's representatives in the presence of
the Petitioner's organizing secretary, Perfecto, and
its president, Lebron, at several meetings held by
the Petitioner in May and June for the employees
at the Mayaguez facility; (3) M. Muniz spoke to a
fellow employee about the Petitioner's initiation
fees and dues, allegedly as a Petitioner representa-
tive; (4) the Muniz brothers accompanied Perfecto
and Lebron to the representation proceedings held
before the Board; (5) they asked Employer repre-
sentatives questions on behalf of the employees at a
meeting held by the Employer with its employees
before the election; (6) M. Muniz attended the
preelection conference, at which he introduced
himself as a Petitioner representative, in Perfecto's
presence; (7) M. Muniz attended the postelection
ballot count with the Petitioner's officials; and (8)
M. Muniz remained in the designated no-election-
eering area, under Perfecto's instructions, for
almost the entire polling period.4
Perfecto denied that the Muniz brothers had in-
troduced themselves as Petitioner representatives
on any of the aforementioned occasions, and
denied that they were ever given authority to act
I Although the hearing officer did not indicate explicitly the duration
of M. Muniz' presence in the waiting room, the uncontroverted record
testimony indicated that M. Muniz remained in the waiting room "almost
all of the time."
269 NLRB No. 141
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the Petitioner's agents. 5 Perfecto also denied
that the in-plant organizing committee was vested
with authority to act as the Petitioner's agent and
claimed that the leaflet circulated by the in-plant
organizing committee under the Petitioner's logo
and letterhead, but without a Petitioner official's
signature, was an "involuntary" mistake. Accord-
ing to Perfecto, the Muniz brothers' function was
to keep the Petitioner informed of all endeavors
undertaken on the Employer's premises, to refute
misstatements concerning the Petitioner at Employ-
er-sponsored meetings with employees, and to act
as a liaison between the Petitioner and the employ-
ees.
Without making a complete credibility resolution
between the Employer's witnesses' allegations and
Perfecto's denials, the hearing officer concluded
that, assuming arguendo that he credited the Em-
ployer's witnesses' allegations that the Muniz
brothers introduced themselves repeatedly as Peti-
tioner representatives, the evidence failed to sup-
port the Employer's contentions that the brothers
were the Petitioner's agents or clothed with appar-
ent authority.
Contrary to the hearing officer, we find that,
even assuming the case in the best light possible for
the Petitioner by crediting Perfecto's denials, there
is ample remaining evidence that the Muniz broth-
ers had apparent authority to conduct themselves
as the Petitioner's agents. Perfecto's denials cov-
ered only a few of the Employer's allegations; the
remaining uncontroverted Employer allegations are
as follows: (1) The Muniz brothers campaigned for
the Petitioner at the Mayaguez facility, and intro-
duced themselves as representatives of the Petition-
er there; (2) M. Muniz spoke to a fellow employee
about the Petitioner's initiation fees and dues, alleg-
edly as a Petitioner representative; (3) the Munizes
asked questions on behalf of the employees at a
meeting held by the Employer with its employees
before the election; (4) the Muniz brothers accom-
panied Perfecto and Lebron to the representation
proceedings held before the Board; (5) M. Muniz
attended the preelection conference; (6) M. Muniz
and E. Muniz traveled to the Mayaguez facility
with Petitioner officials on election day, even
though they were employed at the Employer's
Hato Rey facility; (7) M. Muniz remained in the
waiting room pursuant to Perfecto's instructions;
and (8) M. Muniz attended the postelection ballot
count with Petitioner officials.
We note that Section 2(13) of the Act provides
that
Although both Muniz brothers allegedly were available at the hear-
ing, neither one was called to testify.
[I]n determining whether any person is acting
as an "agent" of another person so as to make
such other person responsible for his acts, the
question of whether the specific acts per-
formed were actually authorized or subse-
quently ratified shall not be controlling.
Rather, responsibility attaches to the Petitioner if,
applying the "ordinary law of agency," it is shown
that the Muniz brothers were acting in the capacity
of Petitioner agents. 6 Thus, the determinative
factor in establishing agency status is not authoriza-
tion or ratification of the agent's acts by the princi-
pal, but rather the nature of the agency. A princi-
pal is responsible for its agents' conduct if such
action is done in furtherance of the principal's in-
terest and is within the general scope of authority
attributed to the agent, even if the principal did not
authorize the particular act. In other words, it is
enough if the principal empowered the agent to
represent the principal within the general area in
which the agent has acted.
In the instant case, we conclude that, despite the
Petitioner's denials that it ever authorized the
Muniz brothers to act as its agents, the foregoing
uncontroverted allegations, when considered in
toto, demonstrate amply that the Munizes' relations
with Petitioner officials reasonably manifested that
M. Muniz and E. Muniz were Petitioner represent-
atives.8 Assuming arguendo that the Petitioner did
not ratify the Munizes' activities, the Petitioner
"held out" the Munizes as apparent agents by fail-
ing to disassociate itself from the results of the
Munizes' actions; by permitting the Muniz brothers
to speak on behalf of the Petitioner at meetings
held by the Petitioner for the employees; 9 by per-
mitting the Munizes to make special appearances
with Petitioner officials at official election func-
tions; by transporting the Muniz brothers to an-
other Employer facility to campaign and vote on
the day of the election; and by instructing M.
Muniz to remain in the no-electioneering area on
election day. We therefore reverse the hearing offi-
cer's finding on this issue.
a See Teamsters Local 886 (Lee Way Motor Freight), 229 NLRB 832
(1977), enfd. 589 F.2d 1116 (D.C. Cir. 1978).
7 Hampton Merchants Assn., 151 NLRB 1307, 1308 (1965); Electrical
Workers Local 914, 106 NLRB 1372, 1379 (1953). See generally Restate-
ment 2d, Agency § 12 comment a and § 49 comments b and c (1958).
s See generally Pastoor Brous Co., 223 NLRB 451, 453 (1976); Mine
Workers District 50 (Terry Elkhorn Mining Co.), 163 NLRB 562, 563 at fn.
I (1967); Operative Potters Local 340 (Macomb Pottery Co). 175 NLRB
756, 757 (1969).
9 The hearing officer did not address this testimony explicitly, but Per-
fecto conceded at the hearing that, although he had never authorized the
Muniz brothers to speak on behalf of the Petitioner as Petitioner officers,
M. Muniz and E. Muniz had in fact spoken on behalf of the Petitioner in
his presence.
828
BIO-MEDICAL OF PUERTO RICO
2. In view of our finding that the Muniz brothers
were agents of the Petitioner, we also disagree
with the hearing officer's finding concerning the al-
leged Milchem' ° rule violation. Although M.
Muniz was employed at the Employer's Hato Rey
facility, he traveled to the Mayaguez facility with
Perfecto on the day of the election to cast his vote.
It is undisputed that Perfecto instructed M. Muniz
to remain in the waiting room, an area which was
adjacent to the conference room, where polling
was conducted. Although the Board agent had des-
ignated the waiting room to be part of the no-elec-
tioneering area, Perfecto instructed M. Muniz to
remain there pending his opportunity to vote, and
to ensure that no supervisor occupied the area or
held a conference there. Both rooms were enclosed
and separated by a wall and door. Despite the
Board agent's admonition that all representatives of
the parties must remain outside the waiting room
or polling area, M. Muniz remained in the waiting
room for almost the entire election period.
M. Muniz spoke to four voters as they ap-
proached the polls, as follows: (1) When he was
situated between the hall and the waiting room, he
inquired of one employee why certain personnel at
the medical center had not arrived yet; (2) he in-
formed two employees in the waiting room that
they could not be present there before voting, but
rather that they had to remain in the working area;
and (3) he asked an employee in the waiting room,
"How are you fellow-worker?" Nothing more was
said. Furthermore, a fifth employee witnessed Em-
ployer Administrator Angel Sierra's futile attempts
to get M. Muniz to abandon the waiting room.
The hearing officer found that M. Muniz was in
the no-electioneering area improperly, but he
termed him an "unauthorized" Petitioner "observ-
er." Noting his earlier finding that M. Muniz was
not a Petitioner agent, and finding that M. Muniz'
conversations were short, casual, and purportedly
not concerned with how the employees voted, the
hearing officer concluded that the Milchem rule
was inapplicable to any "chance, isolated, innocu-
ous comment or inquiry." Moreover, because the
content of M. Muniz' conversations with voters in
the waiting room did not constitute electioneering,
the hearing officer concluded that there was no
Milchem violation.
In Milchem, the Board enunciated its reasons for
setting aside elections which involved conversa-
tions between party representatives and voters in
the no-electioneering area. The Board noted that
"the potential for distraction, last minute election-
eering or pressure, and unfair advantage from pro-
I0 Milchem. Inc., 170 NLRB 362 (1968).
longed conversations between representatives of
any party to the election and voters waiting to cast
ballots is of sufficient concern to warrant a strict
rule against such conduct, without inquiry into the
nature of the conversations. 1."1 Contrary to
the implication in the hearing officer's report, the
Board did not intend to limit the Milchem rule only
to electioneering.12 Rather, the Board announced
therein a strict rule against conversations between
party representatives and voters in the polling area
without regard to the nature of the conversation.
The Board stated in Milchem that 13
[t]he difficulties of recapturing with any preci-
sion the nature of the remarks made in the
charged atmosphere of a polling place are self-
evident, and to require an examination into the
substance and effect of the conversations
seems unduly burdensome and, in this situa-
tion, unnecessary.... [A] blanket prohibition
against such conversations is easily understood
and simply applied.
. . .Additionally, by attaching a sanction to
its breach, the rule assures that the parties will
painstakingly avoid casual conversations which
could otherwise develop into undesirable elec-
tioneering or coercion.
Unlike the hearing officer, we do not find that
M. Muniz' comments to prospective voters in the
waiting room fall within the "chance, isolated, in-
nocuous comment or inquiry" exemption from the
Milchem rule blanket prohibition. We note that the
Board in Milchem stated that, in order to obviate
the troublesome task of deciding what constitutes
an innocuous comment, the parties to the election
should instruct their agents "simply to refrain from
conversing with prospective voters in the polling
area."14 To the contrary, the Petitioner in the in-
stant case admittedly instructed M. Muniz to
remain in the waiting room pending his opportuni-
ty to vote. Because M. Muniz spoke with four
voters in the no-electioneering area and because of
his extended presence in the waiting room, we con-
clude that his conduct was persistent and deliberate
and clearly amounted to more than a "chance, iso-
lated, innocuous comment or inquiry." Further-
more, because M. Muniz informed two employees
that they could not remain in the waiting room
pending their turn to vote, his words and acts may
well have conveyed to these voters the impression
that he had some connection with, if not control
over, the election.'5
" Id.
12 Modern Hard Chrome Service Co., 187 NLRB 82 (1970).
13 Milchem, supra at 362-363.
14 Milchem, supra at 363.
'I See Monroe Mfg. Co., 200 NLRB 62, 74 (1972).
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also find no merit in the Petitioner's conten-
tions that the Milchem proscription is inapplicable
in the instant case because M. Muniz did not
engage in "prolonged conversations," as required
under the Milchem standard. We note that whether
conversations are "prolonged" or "sustained" is de-
termined by examining the cumulative effect of the
party agent(s)' conduct. 16 In the instant case, M.
Muniz' presence in the waiting room was not mo-
mentary,1 7 but rather was sustained throughout the
election. Furthermore, not only had the Board
agent admonished that no party agent could be sit-
uated in the waiting room, but M. Muniz was in-
formed by Angel Sierra, an Employer administra-
tor, that his conduct was violative of the election
rules. In disregard of these admonitions, M. Muniz
persisted in his conduct. 8 For all of the above rea-
sons, we find that M. Muniz' conversations were
"prolonged" within the Milchem standard. Finally,
I' See, e.g., Princeton Refinery, Inc., 244 NLRB 1 (1979); Pastoor Bros
Co., 223 NLRB 451, 453 (1976).
l' Cf. El Rancho Market, 235 NLRB 468, 482 (1978), enfd. 603 F.2d
223 (9th Cir. 1979) (employer's wife's presence at the election site for less
than 2 minutes not objectionable); Marathon Metallic Building Co., 224
NLRB 121 (1976) (supervisor's momentary presence in the voting area
not objectionable).
Is Cf. Modern Hard Chrome Service Co., 187 NLRB 82 (1970) (petition-
er observer continued to converse "beyond a mere hello" notwithstand-
ing the Board agent's admonition); Star Expansion Industries, 170 NLRB
364, 365 (1968).
we reject the hearing officer's conclusion that be-
cause Manuel's comments were "casual and unre-
lated to the manner in which the employees
voted," they did not warrant setting aside the elec-
tion. As noted earlier, Milchem obviates the need
for an inquiry into the nature of the conversation;
absent a "chance, isolated, innocuous" comment,
once the conduct is found to have occurred within
the proscribed area, the election must be set
aside. 19
On the basis of all of the above, we find that Pe-
titioner did vest Manuel and Edwin Muniz with ap-
parent authority to function as its agents, and that
M. Muniz violated the Milchem rule by his actions
in the waiting room during the election. Accord-
ingly, we sustain Employer Objection 6, set aside
the election, and direct that a second election be
conducted.
ORDER
It is ordered that the election in this case con-
ducted on 24 June 1981 is set aside.
[Direction of Second Election omitted from pub-
lication.]
to See Milchem, supra at 362 (conduct of union secretary-treasurer,
who engaged employees waiting in line to vote in conversation for sever-
al minutes, warranted a second election regardless of the content of the
remarks exchanged).
830