Cornell Forge Co.

National Labor Relations Board - Board Decisions

Jul 15, 2003

339 N.L.R.B. 733 (N.L.R.B. 2003)

CORNELL FORGE CO. 733
Cornell Forge Company and International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers. Case 13–RC–
20777
July 15, 2003
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held June 13, 2002, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 50 for and 34 against the Peti-
tioner, with 4 challenged ballots, an insufficient number
to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings1 and recommendations,2 and finds that a certifi-
cation of representative should be issued.
The Employer objected to the election results, arguing,
inter alia, that two prounion employees, Alfredo Aviles
and Augustin Zapata, engaged in electioneering near the
polling place and that Aviles made threatening state-
ments related to the election. The hearing officer over-
ruled the objections. She found that neither Aviles nor
Zapata was an agent of the Union, and that, under the
standards applicable to conduct by third parties, their
actions did not justify setting the election aside.3 We
agree in both respects.
1. The burden of proving an agency relationship is on
the party asserting its existence. Millard Processing Ser-
vices, 304 NLRB 770, 771 (1991) (citing Sunset Line &
Twine Co., 79 NLRB 1487, 1508 (1948)). The agency
relationship must be established with regard to the spe-
cific conduct that is alleged to be unlawful. Pan-Oston
Co., 336 NLRB 305, 306 (2001). An individual can be a

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
2 We adopt without further discussion the hearing officer’s recom-
mendation to overrule the Employer’s objection to the Union’s dis-
semination of an inaccurate Dun & Bradstreet report. See Midland
National Life Insurance Co., 263 NLRB 127 (1982).
3 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s implicit finding that Aviles and Zapata did not engage in objec-
tionable surveillance near the polling place. In any event, our finding
that Aviles and Zapata were not union agents would preclude a conclu-
sion that their conduct constituted objectionable surveillance by the
Union.
party’s agent if the individual has either actual or appar-
ent authority to act on behalf of the party.
Here, there is no evidence that the Union said or did
anything that would give Aviles and Zapata actual au-
thority. Further, the Employer has not demonstrated that
Aviles or Zapata had apparent authority because it has
shown no Union conduct that could have given other
employees in the plant reason to believe that Aviles and
Zapata were acting on the Union’s behalf.
No agency finding can be based on the fact that both
Aviles and Zapata were among 11 employees identified
in a letter from the Union to the Employer as members of
the Union’s in-plant organizing committee, that both
wore union insignia during the campaign, or that Aviles
frequently spoke in favor of the Union to other employ-
ees. The Union’s letter to the Employer identifying the
members of the organizing committee did not state or
imply that those employees were authorized to act for the
Union in any respect, and there is no evidence that this
letter was seen by, or its contents communicated to, other
employees. The Board has long held that prounion em-
ployees do not constitute union agents merely on the
basis of their “vocal and active union support.”4 United
Builders Supply Co., 287 NLRB 1364, 1364 (1988); see
also Tuf-Flex Glass v. NLRB, 715 F.2d 291, 296 (7th Cir.
1983). Further, employee members of an in-plant orga-
nizing committee are not, simply by virtue of such mem-
bership, agents of the union. Advance Products Corp.,
304 NLRB 436, 436 (1991); Uniroyal Technology Corp.
v. NLRB, 98 F.3d 993, 999–1000 (7th Cir. 1996). Such
in-plant organizers are generally found to be agents of
the union only when they serve as the primary conduits
for communication between the union and other employ-
ees or are substantially involved in the election campaign
in the absence of union representatives.5 United Builders
Supply, supra at 1365. Those conditions do not exist
here. Neither Aviles nor Zapata was the Union’s primary
employee contact at the workplace. According to Gary
4 In relying on Windsor House C & D, 309 NLRB 693 (1992), the
hearing officer inadvertently cited former Member Oviatt’s concur-
rence instead of the Board’s decision. We disavow the hearing offi-
cer’s unintentional implication that former Member Oviatt’s concur-
rence represented the view of the Board and her conclusion, based on
that concurrence, that the Board has been “reluctant” to find that mem-
bers of in-plant organizing committees are union agents.
5 We do not suggest that in-plant organizing committee members
may be union agents only if they are the union’s primary conduits for
communication or its primary employee contacts. For instance, the
Board has found such committee members to be apparent agents of the
union when union officials, inter alia, failed to disassociate the union
from the employees’ actions, allowed the employees to speak on behalf
of the union at meetings held by the union for employees, and allowed
them to make special appearances with union officials at election func-
tions. Bio-Medical of Puerto Rico, 269 NLRB 827, 828 (1984).
339 NLRB No. 85
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 734
Prochnow, the Union’s full-time organizer, employee
Christopher Bucon, also on the in-plant organizing com-
mittee, was Prochnow’s primary contact for disseminat-
ing materials and served as the Union’s election ob-
server.
That Aviles solicited one employee to sign a union au-
thorization card does not make him a general agent of the
Union. Under Davlan Engineering, 283 NLRB 803
(1987), employees soliciting authorization cards are spe-
cial agents of the union with regard to the effect of
statements they make about union policies, while they
are engaged in solicitation. However, there is no conten-
tion that Aviles engaged in any objectionable conduct
while soliciting authorization cards.
Nor is it material that Aviles apparently told employ-
ees that he would be the department steward after the
Union was certified. This statement was refuted by the
Union’s letter informing employees that they would
choose their own representatives if the Union won the
election. Even if it had not been refuted, Aviles could
not make himself an agent of the Union solely by his
own statements. See Restatement 2d, Agency § 285
(1958).
Further, the Employer has produced no evidence that
the Union was aware of Aviles’ and Zapata’s allegedly
objectionable conduct, and therefore there is no support
for the Employer’s claim that the Union ratified Aviles’
and Zapata’s statements and action by failing to repudi-
ate them. See, e.g., Pierce Corp., 288 NLRB 97, 101
(1988). See also United Builders Supply, supra at 1365;
Tuf-Flex Glass v. NLRB, supra at 296.
Accordingly, we agree with the hearing officer that
Aviles’ and Zapata’s conduct during the campaign can-
not be attributed to the Union. The cases cited by the
Employer are inapposite, as they involve employees with
far more substantial indicia of union authority.6

6 See Kentucky Tennessee Clay Co., 295 F.3d 436 (4th Cir. 2002)
(alleged agents initially contacted union organizer; carried out organiz-
ing efforts within the plant “often at the direct request” of union organ-
izer, who “placed the lion’s share of the organizing work upon” them;
spoke with employees not only in the workplace but through telephone
calls to their homes; and were “the [u]nion’s only conduits of informa-
tion to the employees”); Bristol Textile Co., 277 NLRB 1637 (1986)
(employee at issue was union’s conduit to employees in plant and was
the only employee with whom union vice president dealt; also, employ-
ees perceived alleged agent as union’s representative); Bio-Medical of
Puerto Rico, supra; Pastoor Bros. Co., 223 NLRB 451, 453 (1976)
(employee committee members were union agents where union used
committee members to solicit authorization cards, employees viewed
committee as union’s in-plant representatives, union used committee as
its liaison with employees, and members of committee drafted handout
that was reviewed and approved by union’s legal counsel before distri-
bution to employees).
2. The hearing officer correctly found that, under the
Board’s standards for objectionable third-party conduct,
neither the alleged electioneering by Aviles and Zapata,
nor the alleged threats by Aviles justify setting aside the
election.
The Employer concedes that Zapata’s conduct is not
objectionable under the third-party electioneering stan-
dard.
Even if all credibility issues were resolved in the Em-
ployer’s favor, Aviles’ conduct would not warrant setting
the election aside. His electioneering conduct consisted,
at most, of speaking without threats in favor of the Union
at his own workstation, which was outside the voting
area. This conduct did not substantially impair the em-
ployees’ exercise of free choice. See Rheem Mfg. Co.,
309 NLRB 459 (1992), enfd. mem. 28 F.3d 1210 (4th
Cir. 1994). Nor did Aviles’ alleged threats earlier in the
campaign create a general atmosphere of fear and repri-
sal that rendered a free election impossible.7 See Robert
Orr-Sysco Food Services, 338 NLRB 614 (2002); West-
wood Horizons Hotel, 270 NLRB 802 (1984). Assuming
the threats were made as alleged, they were made to only
one eligible voter, there is no showing of dissemination,
and the Union won the election by 16 votes. Accord-
ingly, we find no merit to the Employer’s exceptions to
the hearing officer’s disposition of its objections.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for the International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers, and that it is the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:

All production and maintenance employees including
lead persons and plant clerical employees employed by
the Employer at its facility now located at 6666 West
66th Street, Chicago, Illinois 60638-4904, but exclud-
ing all other employees, office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.

7 Aviles allegedly told employee Gerald Regnier that his “gang
friends” would replace Regnier and attempted to show Regnier where
he had been shot and stabbed by the gang.
. CORNELL FORGE CO. 735

MEMBER SCHAUMBER, concurring.
I join my colleagues in overruling the Employer’s ob-
jections, and in their determination that employees Al-
fredo Aviles and Augustin Zapata were not agents of the
Union with respect to the alleged objectionable conduct.
Whether an employee has apparent authority under Sec-
tion 2(13) of the Act will depend on the particular facts
of each case. Under all the circumstances presented in
the case under consideration, I agree that the Employer
did not prove by a preponderance of the evidence that
Aviles and Zapata were union agents. Nevertheless, I
respectfully part company with some of the statements of
law in the majority’s decision. By way of example, I do
not subscribe to any implication in the majority’s deci-
sion that members of a union’s in-plant organizing com-
mittee must be the union’s “primary conduits for com-
munication” or “primary employee contact[s]” before a
finding of apparent authority is warranted. Since I agree
with the result the majority reaches, I find it unnecessary
to comment further on the majority’s characterization of
prior Board decisions and their applicability here.