Doral Building Services, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1983

266 N.L.R.B. 1215 (N.L.R.B. 1983)

DORAL BUILDING SERVICES, INC.
Doral Building Services, Inc. and Stove, Furnace
and Allied Appliance Workers International
Union of North America, AFL-CIO, Local No.
125B. Case 31-CA-10100
4 August 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JENKINS AND ZIMMERMAN
On 3 December 1982 Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,l
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Doral Building
Services, Inc., Los Angeles and Pasadena, Califor-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall ProductM
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
ROGER B. HOLMES, Administrative Law Judge: In
order to understand more easily the present status of this
proceeding, it may be helpful to review briefly some of
the matters which have occurred earlier in this case and
in the underlying representation case.
1. PRELIMINARY MATrIERS
Based upon a representation petition in Case 31-RC-
4626, which was filed on October 11, 1979, by Stove,
Furnace and Allied Appliance Workers International
Union of North America, AFL-CIO, Local No. 125B,
the Board conducted an election on January 3, 1980,
among certain building maintenance employees of Doral
Building Services, Inc. The description of the unit in
which that election was held is:
All building maintenance employees employed by
the Employer at the following locations: in Pasade-
na, California: 100 West Walnut Street, 75 North
Fair Oaks Street, 170 North Fair Oaks Street, and
80 South Lake Street; in Los Angeles, California:
714 West Olympic Boulevard, 1052 West 6th Street,
201 South Alvarado Street, and 133 South Lasky
Drive; excluding all office clerical employees, pro-
fessional employees, guards and supervisors as de-
fined in the Act.
The numerical count at the election was that 25 votes
were cast for the Union and 23 votes were cast against
union representation. There were two challenged ballots,
which were sufficient in number to affect the results of
the election.
The Employer timely filed an objection to conduct af-
fecting the results of the election. The Employer's objec-
tion is as follows:
Pursuant to Section 102.69 of the Rules and Reg-
ulations of the National Labor Relations Board,
Series 8, as amended, the Employer hereby objects
to conduct of the Petitioner, through its agents and
representatives, affecting the results of the election
conducted on January 3, 1980, all as described
below.
Immediately prior to and during the time the
polls were open on the day of the election, agents
and representatives of the Petitioner offered mone-
tary payments to certain employees in order to and
for the purpose of inducing them to vote in favor of
representation by the Petitioner.
The above-described acts of conduct interfered
with the free and untrammeled choice of the em-
ployees voting in the election and, therefore, the
election should be set aside.
Following an administrative investigation, the Region-
al Director for Region 31 of the Board in Los Angeles
issued on February 28, 1980, a Supplemental Decision
and Certification of Representative. He found that the
Employer's objection to the election was without merit.
He also sustained the challenge to one of the two chal-
lenged ballots. Thus, it became unnecessary to resolve
the issues with regard to the one remaining challenged
ballot because that one ballot could not have an effect
upon the results of the election. The Employer filed a re-
quest for review of the Regional Director's decision with
the Board in Washington, D.C. On April 8, 1980, the
Board denied the Employer's request for review.
By letters dated April 30 and May 27, 1980, and by a
telephone conversation on June 9, 1980, the Union made
requests that the Employer bargain with the Union. The
Employer did not reply to the letters, but the Employ-
er's attorney advised the Union's attorney in their tele-
phone conversation that the Employer was unwilling to
bargain with the Union based upon the Employer's con-
tention that its objection to the election should have been
266 NLRB No. 206
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sustained and that the Board's certification was improp-
er.
The unfair labor practice charge in Case 31-CA-10100
was filed on June 13, 1980, by the Union. The Regional
Director for Region 31 of the Board, who was acting on
behalf of the General Counsel of the Board, issued on
July 22, 1980, a complaint alleging that the Employer
had refused to bargain with the Union in the unit re-
ferred to above in violation of Section 8(aXl1) and (5) of
the Act. The Employer filed an answer to the General
Counsel's complaint on July 30, 1980. Counsel for the
General Counsel then filed on August 27, 1980, with the
Board in Washington, D.C., a Motion for Summary
Judgment.
The Board issued on September 30, 1980, its Decision
and Order in this case. The decision is published at 252
NLRB 1243. Thereafter, the Board filed an application
for enforcement of the Board's Order in the United
States Court of Appeals for the Ninth Circuit. However,
the Board, on its own motion, decided that it should re-
consider its decision, and, therefore, the Board filed with
the court a motion to withdraw its application for en-
forcement and the record before the court. The court
granted the Board's motion.
On February 24, 1982, the Board issued an Order Re-
scinding Decision and Remanding Proceeding to Region-
al Director for Hearing. In that Order, the Board direct-
ed that a hearing be held before an administrative law
judge "for the purpose of receiving evidence to resolve
issues raised by Respondent's objection."
Pursuant to the Board's Order dated February 24,
1982, a hearing was held before me on October 14, 1982,
at Los Angeles, California. The time for filing post-hear-
ing briefs was set for November 18, 1982.
II. JURISDICTION AND LABOR ORGANIZATION
The jurisdiction of the Board over the business oper-
ations of the Employer is not in issue in this proceeding.
The Employer is engaged in the business of providing
janitorial services to commercial enterprises. The Em-
ployer has its principal office located in Los Angeles,
California. The Employer's business operations meet the
Board's indirect outflow jurisdictional standard.
The status of the Union as being a labor organization
within the meaning of the Act also is not in dispute in
this proceeding. That fact was admitted in the pleadings.
III. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Five persons were called to testify as witnesses at the
hearing in this proceeding. In alphabetical order by their
last names, they are: Richard J. Bacher, who is the third
vice president of Stove, Furnace and Allied Appliance
Workers International Union of North America, AFL-
CIO; Oscar Castaneda, who is a former employee of
Doral Building Services, Inc., and who was terminated
from employment by the Company; Andrew B. Kaplan,
who is an attorney in the law firm of Pettit & Martin,
and who represents the Employer in this proceeding; Al-
exander Mendoza, who has been an employee of the
Company since November 1, 1978; and Marcela Rami-
rez, who was formerly employed by the Company
during the time material herein.
The findings of fact to be set forth herein will be
based upon portions of the testimony of each one of the
five witnesses, documentary evidence which was intro-
duced by the parties at the trial, stipulations which the
parties entered into, and certain facts which are not in
dispute.
In addition, some of the findings of fact will be based
upon the written statements and the affidavits of two
persons who were "unavailable," as I construe that term
as used in Rule 804 of the Federal Rules of Evidence.
The names of the two persons are Catarino Lopez and
Fermin Lozoya. They were formerly employed by the
Company at the time of the election in issue herein.
Catarino Lopez was killed in a traffic accident near
Bakersfield, California, in August 1982. (See Tr. pp. 129-
130.) The whereabouts of Fermin Lozoya were unknown
to the Employer at the time of the hearing. (See Tr. pp.
151-152.) In an effort to locate Lozoya, the Employer
obtained the services of Windsor Security, which is a
private investigation agency. Agents of Windsor Security
obtained two addresses for Lozoya from the Los Ange-
les Police Department, and they visited both locations on
several occasions to try to locate Lozoya. The agents
were told that Lozoya was not living at those addresses,
that the persons there had never heard of him, and that
they did not know where he was. The agents also
checked with the postal inspector's office for a mailing
address for Lozoya, and they checked with the voter
registration office and the Department of Motor Vehi-
cles. They further checked with various utility compa-
nies in California to ascertain if any of those companies
had an address for Lozoya. All of the agents' efforts
were unsuccessful in locating Lozoya.
Lopez and Lozoya were among the individuals who
had given written statements in the Spanish language on
January 22, 1980, to the Company's attorneys. Attorney
Diane Bartoli, who at that time was an associate in the
law firm of Pettit & Martin, and who is bilingual in the
English language and the Spanish language, assisted at-
torney Kaplan in taking the statements from the employ-
ees. The statements were read to the employees in the
Spanish language, and the employees signed the state-
ments at that time. (See Tr. pp. 89-90 and 140-142.)
Introduced into evidence as Respondent's Exhibit 6
was a copy of a letter dated October 6, 1982, from attor-
ney Kaplan to attorney Richard Paradise, who served as
counsel for the General Counsel in this proceeding. A
copy of that letter was sent to attorney Michael J. Shel-
ley of the law firm of Potts & Richman, who represents
the Union in this proceeding. In part, the letter stated:
This is to confirm our telephone conversations of
September 15, October 4 and 5, 1982 wherein I ad-
vised that it was the employer's intent to move into
evidence, at hearing in the above-referenced matter,
the written statements of Catarino Lopez and
Fermin Lozoya previously supplied to your office
in connection with Case No. 31-RC-4626. This,
pursuant to Rules 803(24) and 804(b)(5) of the Fed-
eral Rules of Evidence, in that Mr. Lopez is dead
1216
DORAL BUILDING SERVICES, INC.
and the employer, despite its best efforts, has been
unable to locate Mr. Lozoya.
As you are aware, the statements aver that while
waiting to vote in Case No. 31-RC-4626, and some
five or ten minutes before the polls opened, Messrs.
Lopez and Lozoya were approached by Guillermo
Gonzalez and offered twenty dollars if they would
vote in favor of the union.
Under the provisions of Rule 804(bX5) of the Federal
Rules of Evidence, I received into evidence, over timely
objections, both the written statements given by Lopez
and Lozoya to the company attorneys on January 22,
1980, and the affidavits given by Lopez and Lozoya to
an agent of Region 31 of the Board on January 23, 1980.
Respondent's Exhibit 8 is the Spanish language statement
given by Lopez to the company attorneys, and Respond-
ent's Exhibit 9 is the English language translation of that
statement. Respondent's Exhibit 10 is the Spanish lan-
guage affidavit given by Lopez to a Board agent, and
Respondent's Exhibit 11 is an English language transla-
tion of that affidavit. Respondent's Exhibit 7 is the Span-
ish language statement given by Lozoya to the company
attorneys, and Respondent's Exhibit 12 is an English lan-
guage translation of that statement. Respondent's Exhibit
13 is the Spanish language affidavit given by Lozoya to a
Board agent, and Respondent's Exhibit 14 is an English
language translation of that affidavit.
It is stated in 5 Wigmore Evidence §1367 (Chadbourn
rev. 1974), with regard to the importance of cross-exami-
nation, "Nevertheless, it is beyond any doubt the greatest
legal engine ever invented for the discovery of truth."
Of course, there was no opportunity at this hearing for
anyone to cross-examine Lopez and Lozoya. However,
in Central Freight Lines, 250 NLRB 435 (1980), which
was an earlier unfair labor practice case before me, I re-
ceived into evidence the affidavit of a deceased person
under my view of Rule 804(b)(5) of the Federal Rules of
Evidence. The Board stated in footnote 1 in that deci-
sion: "We agree with the Administrative Law Judge that
the affidavit is admissible with regard to the conversation
between Barthell and Domino, as it meets the standards
of Rule 804(bX5)." In this connection, see also the
Board's decision in Prestige Bedding Co, 212 NLRB 690
at 701, fn. 13 (1974).
As I pointed out to the parties in this case during the
hearing, the United States Court of Appeals for the Fifth
Circuit did not agree with the ruling which I had made
during the trial in Central Freight Lines with regard to
the Barthell affidavit. See the court's opinion in Central
Freight Lines v. NLRB, 653 F.2d 1023 (5th Cir. 1981). At
1026, the court held:
In admitting the affidavit, the ALJ relied on
Fed.R.Evid. 804(b)(5), the residual exception to the
hearsay rule. For that Rule to apply, however, an
extra-judicial statement must have circumstantial
guarantees of trustworthiness equivalent to those
listed in the Rule at 804(b)(1)-(4): former testimony,
belief of impending death, statement against interest,
and personal or family history.
There is no evidence that Barthell had a belief in
impending death. Nor is there evidence that the
Barthell affidavit had any equivalent guaranty of
trustworthiness of any kind. Indeed, it was written
by examiner Brown and merely signed by Barthell.
As stated in Workman v. Cleveland-Cliffs Iron Ca,
68 F.R.D. 562, 565 (N.D.Ohio 1975): "The Court is
well aware of the subtle shifts in meaning that can
occur when one's statement is recorded by an-
other."
Unless application of Rule 804(bX5) be limited to
circumstances evidencing a clear basis of trustwor-
thiness, exceptions to the rule against hearsay could
swallow the rule. Because there were no such cir-
cumstances here, the board erred as a matter of law
in relying on the Barthell affidavit to support a find-
ing that the Company violated Section 8(aXl) be-
cause of a Domino-Barthell conversation. Para-
graph l(b) of the board's order depends entirely,
and paragraph l(c) thereof depends in part, on the
Barthell affidavit. The former must therefore be de-
leted and the latter amended.
Nevertheless, the Board has made it clear that its ad-
ministrative law judges are obligated to apply Board
precedent, unless such precedent is later reversed by the
Board itself or by the United States Supreme Court. Ford
Motor Co., 230 NLRB 716 (1977), enfd. 571 F.2d 993
(7th Cir. 1978), affd. 441 U.S. 488 (1979). (See also my
discussion regarding the obligation to follow Board
precedent in an earlier case before me, where I applied
the Board's holding in Alleluia Cushion Co., 221 NLRB
999 (1975), although the United States Court of Appeals
for the Ninth Circuit had indicated recently at that time
its disagreement with the Alleluia Cushion theory in a
still earlier case before me. Hotel & Restaurant Employees
Local 28, 252 NLRB 1124, 1133-34 (1980). The case
which had preceded that one was Bighorn Beverage, 236
NLRB 736 (1978), and the court's opinion is reported in
NLRB v. Bighorn Beverage, 614 F.2d 1238 (9th Cir.
1980).)
An additional consideration in this proceeding for re-
ceipt of the written statements and the affidavits of
Lopez and Lozoya is the fact that this hearing was more
like an investigatory hearing on objections to an election
than the usual adversary unfair labor practice trial. (See
the facts set forth in sec. I herein with regard to the
present status of this proceeding.) It seems to me that
there is more reason here to avoid being overly technical
in applying the Federal Rules of Evidence "so far as
practicable" in light of the nature of this hearing. (See
Sec. 10(b) of the Act.) However, I do not mean to imply
that all of the assertions made in the statements and affi-
davits are to be viewed uncritically and without consid-
eration of the other evidence.
Ramirez appeared as a witness at the hearing, as indi-
cated above, but she did not relate on the witness stand
her account of the events to be described in section A
and section B herein. (See Tr. pp. 23-87.) However, she
had given a written statement to the company attorneys,
and she read it over and stated that it was true and cor-
rect when she made it. She, at first, denied that she had
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed any other statements with regard to this matter,
and she did not recall giving an affidavit to a Board
agent. (See Tr. pp. 63-64 and 72-73.) However, she did
recognize her signature on an affidavit which was pro-
duced from the Region's files. She also indicated that she
did not remember voting in the election in issue herein,
but the Excelsior list indicated that she had, in fact,
voted. (See Tr. pp. 84-87.) Under the circumstances, I
received into evidence both her written statement which
she had given to the company attorneys and the affidavit
which she had given to a Board agent. Those exhibits
are Respondent's Exhibit 4 and Union's Exhibit 1. Re-
spondent's Exhibit 5 is an English language translation of
Respondent's Exhibit 4, and Union's Exhibit 2 is an Eng-
lish language translation of Union's Exhibit 1. See the
Board's decision in Alvin J. Bart & Co., 236 NLRB 242
(1978), and the Board's decision in Economy Fire & Casu-
alty Co., 264 NLRB 16, fn. 1 (1982).
When Mendoza was asked if he had ever given a state-
ment to the National Labor Relations Board, Mendoza
replied "never." (See Tr. pp. 102.) Then he was shown
an affidavit, which Mendoza acknowledged as being his
statement. (See Tr. pp. 104.) At the hearing, Mendoza
testified that he had heard Gonzalez talk to other em-
ployees about the Union "a few days before and a few
days after" the election. (See Tr. pp. 106-109.) However,
in the English language translation of his earlier affidavit,
which he had given to a Board agent on January 23,
1980, Mendoza had stated, "I have heard other employ-
ees say that Gonzalez was in favor of the union, but I
never heard him talk about the union before the day of
the election as I mentioned above." Mendoza acknowl-
edged at the hearing that he and Gonzalez did not get
along with each other, and that they did not like one an-
other. Mendoza testified, "Because he was for the union
and I wasn't .... No, just because of the union, just
because of that." (See Tr. pp. 104-106.) In these circum-
stances, I received into evidence as Union's Exhibit 3 the
Spanish language affidavit which Mendoza had given to
a Board agent, and also I received as Union's Exhibit 4
an English language translation of that affidavit. (See the
cases cited above with regard to Ramirez.) Bearing in
mind the foregoing matters, and bearing in mind the pas-
sage of time between the date of the election and the
date of the hearing, I found the affidavit to be a more
reliable account of his version of the events than Mendo-
za's recollection at the hearing.
With regard to all of the witnesses, I have given con-
sideration to their demeanor while they were testifying,
their occupations and positions with one of the parties to
the proceeding, and whether their accounts are consist-
ent with, or inconsistent with, the accounts of other per-
sons, documentary evidence, and facts which are not in
dispute.
A. Matters Pertaining to Guillermo Gonzalez
At the time of the election on January 3, 1980, Guiller-
mo Gonzalez was between 19 and 20 years old, and he
had been employed by the Company for about 10
months.
Oscar Castaneda was formerly a roommate of Gonza-
lez for about 8 or 9 months, including the time of the
election. Castaneda also was employed by the Employer
at the time of the election, and he performed the task of
cleaning restrooms. At the time of the hearing, Castan-
eda had no idea of the whereabouts of Gonzalez. Castan-
eda had last seen Gonzalez at a discotheque about 2
months prior to the hearing.
In the opinion of Castaneda, Gonzalez was "just play-
ing around all the time." Castaneda formed the belief
that Gonzalez sometimes said things in order to make
other people laugh. In Castaneda's opinion, the reputa-
tion of Gonzalez among the other employees was that
Gonzalez was "playful and to a certain extent irresponsi-
ble. . . nobody believed what he said because he always
said things with a double meaning." Castaneda recalled
talking with "almost all" of the employees with regard
to Gonzalez. However, he did not recall their names at
the time of the hearing except for Lopez and Lozoya,
about whom he related his conversations. (See Tr. pp.
183-185.)
According to the English language translation of the
affidavit which Lozoya had given to a Board agent,
Lozoya was of the opinion regarding Gonzalez on the
day of the election: "I did not believe that he was going
to give money because I know him pretty well and he is
always joking and playing around." (See Resp. Exhs. 13
and 14.)
According to the English language translation of the
statement which Lopez had given to the company attor-
neys, Lopez said that Gonzalez had spoken in favor of
the Union before the election. (See Resp. Exhs. 8 and 9.)
According to the English language translation of the affi-
davit which Lopez had given to a Board agent, Lopez
also stated, "I heard Guillermo talk about the Union sev-
eral times before the day of the election, he always
talked in favor of the Union. He once invited me to go
to a Union meeting but I didn't go." (See Resp. Exhs. 10
and 11.)
According to the English language translation of the
affidavit which Ramirez had given to a Board agent, Ra-
mirez stated regarding Gonzalez, "Guillermo always
spoke like he was joking. I did not believe that he was
going to give the 20 dollars. I never know when Guiller-
mo is joking or serious." (See U. Exhs. I and 2.)
International Union Vice President Bacher and union
representative Ruben Diaz were the two union represent-
atives who participated in the Union's efforts to organize
the employees of the Employer. According to Bacher,
Guillermo Gonzalez did not assist the Union in the orga-
nizing of employees. Gonzalez was not employed by
either the International Union or the Local Union, and
Gonzalez was not an official of either organization.
Bacher was present at the Ralph M. Parsons Building
located at 100 West Walnut immediately prior to the
start of the election held at that location on January 3,
1980. According to Bacher, individuals volunteered to be
election observers for the Union. Either Bacher or Diaz
selected the individuals to be union observers from
among those who volunteered. Bacher recalled that he
had talked with Gonzalez on that occasion. Introduced
into evidence as Respondent's Exhibit 3 was a copy of
the Certification on Conduct of Election. What purports
1218
DORAL BUILDING SERVICES, INC.
to be the signature of Guillermo Gonzalez appears there-
on as an election observer for the Union. (See Tr. pp.
33-36.)
At the hearing, Bacher said that he had no knowledge
that Gonzalez had offered money to anyone for purposes
of voting for the Union. Bacher did not authorize Gon-
zalez to make any such statement, and Gonzalez did not
tell Bacher that Gonzalez had done so. Bacher did not
offer to give Gonzalez any money so that Gonzalez
could pay anyone, and Bacher did not authorize anyone
else to do so. Bacher said at the hearing that he had
never authorized anyone to do so in any election. Ac-
cording to Bacher, neither the International Union nor
the Local Union had paid any money to Gonzalez, and
he said the LM 3 report required by the Labor Manage-
ment Reporting and Disclosure Act did not reflect any
monetary payments by the Union to Gonzalez.
B. The Events on January 3, 1980
The election involved herein was held in the Parsons
Building in Pasadena in a room which was nornally used
by the Employer to store cleaning supplies. Before the
election began, four or five employees were waiting in
another room.
In the English language translation of the affidavit
which Ramirez had given to a Board agent, Ramirez
stated:
Guillermo Gonzalez, a cleaning employee, like
me, said in a loud and kind of merry voice "I will
give 20 dollars to whoever votes for the union." He
put his hands in his pockets but I did not see him
take money out. I did not answer him, nor did any
of the others answer him. Guillermo always spoke
like he was joking. I did not believe that he was
going to give the 20 dollars. I never know when
Guillermo is joking or serious.
In the English language translation of the affidavit
which Mendoza had given to a Board agent, Mendoza
stated:
At about five to 11:00, I heard Guillermo Gonza-
lez tell a group of about five employees in a not
very loud voice, "If you vote yes, I will give you
20 dollars." Upon hearing this I left that area and
went to the voting area to vote. I did not hear
anyone answer Gonzalez. Of those in the group he
said it to, I only know Marcela and Cheni
I heard Gonzalez make his offer in a serious
voice, but I do not know if he made it in jest or
truthfully.
In the English language translation of the statement
which Lopez had given to the company attorneys,
Lopez stated:
At about 10:55 p.m. on January 3, 1980, Guiller-
mo Gonzalez told a group of employees, from four
to five people, that if they voted for the union he
would give them twenty (20) dollars each. I heard
what Guillermo offered the group of employees.
In the English language translation of the affidavit
which Lopez had given to a Board agent, Lopez stated:
An employee named Guillermo , I
don't know his last name, told the group in general
in a loud voice "I offer $20 to the ones who vote
for the Union even though I will spend my whole
salary, but the vote has to be signed." Guillermo
said this seriously. I believe what he said about
giving the money, but I didn't talk to him because I
went in to vote.
In the English language translation of the statement
which Lozoya had given to the company attorneys,
Lozoya stated: "This occurred while I was in line to
enter the room where the election was held."
In the English language translation of the affidavit
which Lozoya had given to a Board agent, Lozoya
stated:
. . .and he said to the group laughing and playing
around "I offer 20 dollars to whoever votes for the
union." I did not believe that he was going to give
money because I know him pretty well and he is
always joking and playing around. Besides, I know
that he doesn't have any money because he told me
so and also he said that he had spent all of the
money he had moving to an apartment. When Guil-
lermo spoke of the 20 dollars, no one said anything
to him in reply.
Conclusions
In analyzing the evidence presented in this case, it is
helpful to look for guidance to the Board's decision in
Teamsters Local 886 (Lee Way Motor Freight), 229 NLRB
832 (1977), where the Board stated at 832-833:
We note, however, that Section 2(13) of the Act
provides that:
In 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 performed were actu-
ally authorized or subsequently ratified shall not
be controlling.
Rather, responsibility attaches if, applying the "or-
dinary law of agency," it is made to appear the
union agent was acting in his capacity as such.
Local 7660 International Brotherhood of Electrical
Workers, A.F. of L (Roane-Anderson Company), 82
NLRB 696, 712 (1949). And, as the Board has indi-
cated in International Longshoremen's and Ware-
housemen's Union, CI.O., Local 6, et at (Sunset Line
and Twine Company):
A principal may be responsible for the act of his
agent within the scope of the agent's general au-
thority, or the "scope of his employment" if the
agent is a servant, even though the principal has
not specifically forbidden the act in question. It is
enough if the principal actually empowered the
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agent to represent him in the general area within
which the agent acted.'
As the Second Circuit in N.L.R.B. v. Local Union
No. 3, International Brotherhood of Electrical Work-
ers, AFL-CIO [New York Telephone Company],2
noted, "[c]ommon law rules of agency govern; au-
thority may be implied or apparent, as well as ex-
press."
' 79 NLRB 1487, 1509 (1948).
2 467 E.2d 1158 (1972).
Applying the foregoing legal principles to the particu-
lar facts in this case, I conclude that Gonzalez was not
an agent of the Union at the time material herein, and
that Gonzalez' conduct just prior to the election is not
attributable to the Union. In this connection, I have con-
sidered the fact that Gonzalez had spoken to employees
in favor of the Union on earlier occasions. Of course, as
an employee of the Employer, Gonzalez had a right to
do so, and that right is protected by the Act. According
to Bacher, Gonzalez did not assist the Union in its orga-
nizing efforts among the employees of the Employer.
Thus, insofar as the record shows, Gonzalez had no par-
ticular prominence or role in the Union's organizing
campaign, other than to speak to employees in favor of
the Union and to act as an election observer for the
Union. As an election observer, I conclude that Gonza-
lez was limited to the usual duties of an election observer
in a Board-conducted election. I find no basis for infer-
ring otherwise. Bacher did not authorize Gonzalez to
offer $20 to employees if they voted for the Union. Gon-
zalez was not paid any money by the Union, and Gonza-
lez did not hold any position with the Union. Thus, as
indicated above, I conclude that Gonzalez was not
acting as an agent of the Union in making the $20 offer
to the employees, and that his conduct is not attributable
to the Union. In addition to the cases cited above, see
also J-Wood, 263 NLRB 1179 (1982), and Firestone Steel
Products Co., 235 NLRB 548 (1978), and the cases cited
therein.
Nevertheless, while the Board has accorded less
weight to conduct which is not attributable to a party to
an election, the Board has set aside elections where the
conduct by nonparties "created a general atmosphere
among the voting employees of confusion and fear of re-
prisal for failing to vote for or to support the Union."
Steak House Meat Co., 206 NLRB 28, 29 (1973). There-
fore, I turn now to an analysis of Gonzalez' conduct on
the day in question.
After considering the various accounts related in sec-
tion A and section B herein, I conclude that the evidence
presented at the hearing shows that about 5 to 10 min-
utes prior to the election held on January 3, 1980, Gon-
zalez told a group of four to five employees, who were
located in a room other than the room where the elec-
tion was to be held, that he would give $20 to anyone
who voted for the Union. I further conclude that Gonza-
lez made his offer to the employees in a joking manner.
That conclusion rests upon: (1) Lozoya's observation
that Gonzalez "said to the group laughing and playing
around 'I offer 20 dollars to whoever votes for the
union"'; (2) Ramirez' observation that Gonzalez spoke in
a "kind of merry voice"; and (3) the observations and de-
scriptions of Gonzalez given by the employees, as related
in section A herein, which indicate that Gonzalez had
demonstrated a trait or characteristic to them of being a
person who frequently jokes with them.
In connection with item (3) above, note the descrip-
tions that the other employees gave regarding Gonzalez:
(1) he was "just playing around all the time"; (2) he was
"playful and to a certain extent irresponsible ... nobody
believed what he said because he always said things with
a double meaning"; (3) "I know him pretty well and he
is always joking and playing around"; and (4) "Guiller-
mo always spoke like he was joking . . . I never know
when Guillermo is joking or serious." Thus, I conclude
that the evidence set forth in section A herein shows a
propensity on the part of Gonzalez to act in a joking
manner, and that his trait or characteristic in that regard
makes it more probable that Gonzalez did make his offer
of $20 to the employees in a joking manner, which was
observable to those hearing him. Therefore, I further
conclude that the foregoing outweighs the observations
of Mendoza and Lopez that Gonzalez spoke seriously to
the group. In addition, Lopez is the only one who relat-
ed that Gonzalez told the group that they had to sign
their ballots in order to receive $20. Note that Lopez re-
lated that in his affidavit which he had given to a Board
agent, but he did not relate that in his written statement
which he gave to the company attorneys. I conclude that
the weight of the evidence is against Lopez' assertion in
that respect because no other person gave that version in
his account.
In summary, I have concluded at this point that the
offer was made: (1) in a joking manner; (2) by an em-
ployee who was not an agent of the Union; and (3) in a
room other than the one in which the election was held.
However, those conclusions do not end the inquiry be-
cause another basis urged in support of the Employer's
objection to the election is that Gonzalez' remarks violat-
ed the rule announced by the Board in its decision in
Milchem, Inc., 170 NLRB 362 (1968).
For guidance in applying the Milchem rule, I have
looked to the Board's recent analysis and explanation of
the Milchem rule. In its decision in Boston Insulated Wire
& Cable Co., 259 NLRB 1118 (1982), the Board stated:
Nevertheless, the Board does not apply its "no
electioneering" rules to set aside elections whenever
electioneering takes place "at or near the polls," re-
gardless of the circumstances. While the Board
seeks to establish election conditions as ideal as pos-
sible, "elections must be appraised realistically and
practically, and should not be judged against theo-
retically ideal, but nevertheless artificial, stand-
ards."7 A representation election is often the climax
of an emotional, hard-fought campaign and it is un-
realistic to expect parties or employees to refrain to-
tally from any and all types of electioneering in the
vicinity of the polls.8
When faced with evidence of impermissible elec-
tioneering, the Board determines whether the con-
duct, under the circumstances, "is sufficient to war-
1220
DORAL BUILDING SERVICES, INC.
rant an inference that it interfered with the free
choice of the voters." g This determination involves
a number of factors. The Board considers not only
whether the conduct occurred within or near the
polling place, but also the extent and nature of the
alleged electioneering,1 ° and whether it is conduct-
ed by a party to the election or by employees.
The Board has also relied on whether the election-
eering is conducted within a designated "no elec-
tioneering" areal 2 or contrary to the instructions of
the Board agent. ' s
The Liberal Market Inc., 108 NLRB 1481, 1482 (1954). While
Liberal Market involved the effect of antecedent conduct upon a
Board election, the standard is equally applicable to allegations of
improper electioneering.
' Courts have recognized that the Board has "broad discretion
in creating and enforcing standards to ensure fair elections." Hall-
Brooke Hospital v. N.LR.R, 645 F.2d 158 (2d Cir. 1981). See also
N.LRP. v. Piuta Hill Foundation, 639 F.2d 479 (9th Cir. 1980);
N.LR.R v. Campbell Products Department, 623 F.2d 876 (3d Cir.
1980).
D Star Expansion Enterprises, 170 NLRB 364, 365 (1968). Of
course, conduct which violatea the strict Mlkhem rule is found to
constitute per se interference with the free choice of the voters.
10 See Cabs Housekeeper Service, Inc, 241 NLRB 1259 (1979).
See also Harold W. Moore d/b/a Harold W. Moore d Son, 173
NLRB 1258 (1968). Even the Board's strict Milckhem rule does not
apply to any "chance, isolated, innocuous comment or inquiry" be-
tween a party to the election and a voter.
" In regulating the conduct of elections, the Board has long
distinguished between the conduct of parties to the election and
the conduct of employees. See, generally, Orleans Manufacturing
Ca, 120 NLRB 630 (1958). Thus, the Milchem rule applies only to
prolonged conversations between parties to the election and
voters. See N.LR.R v. Campbell Products Department, supra and
N.LR.a v. Slagle Manufacturing Company, sl. op. #80-1098 (10th
Cir. 1981). This distinction has been applied to other types of elec-
tioneering as well. Niagra Wrex Inc, 237 NLRB 1347 (1978).
Third-party conduct must be "so disruptive" as to require setting
aside the election. Robert's Tours Inc., 244 NLRB 818 (1979).
15 Marvi International Security Service, 173 NLRB 1260 (1968);
Cabs Housekeeper Service, Inc., supr
15 Star Expansio Enterprim supra. The electioneering herein
was not of such a nature or extent that it was brought to the atten-
tion of the Board agent.
With the foregoing holding by the Board in mind, I
conclude that the statement made by Gonzalez, under
the circumstances of this case, did not violate the
Board's Milchem rule because: (1) the offer made by
Gonzalez to the employees was made in a joking
manner; (2) there was no prolonged conversation, but in-
stead a brief statement; (3) Gonzalez was not an agent of
the Union, and thus this was not a statement made by a
party to the election; and (4) the statement was made 5
to 10 minutes prior to the start of the election and in a
room which was not the polling area.
After considering all of the foregoing, I hereby recom-
mend to the Board that the Employer's objection to the
election held on January 3, 1980, in Case 31-RC-4626 be
overruled. Accordingly, I further recommend to the
Board that the Employer's refusal to bargain with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the appropriate unit be found in
Case 31-CA-10100 to be an unfair labor practice within
the meaning of Section 8(aX)() and (5) of the Act.
CONCLUSIONS OP LAW
1. Doral Building Services, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Stove, Furnace and Allied Appliance Workers
International Union of North America, AFL-CIO, Local
No. 125B, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All building maintenance employees employed by
Respondent at the following locations: in Pasadena, Cali-
fornia: 100 West Walnut Street, 75 North Fair Oaks
Street, 170 North Fair Oaks Street, and 80 South Lake
Street; in Los Angeles, California: 714 West Olympic
Boulevard, 1052 West 6th Street, 201 South Alvarado
Street, and 133 South Lasky Drive; excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since February 28, 1980, the above-named labor or-
ganization has been and now is the certified and exclu-
sive representative of all employees in the aforesaid ap-
propriate unit for the purpose of collective-bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about April 30, 1980, and at all
times thereafter, to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of all the employees of Respondent in the
appropriate unit, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(aX5) of the Act.
6. By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfer-
ing with, restraining, and coercing, employees in the ex-
ercise of the rights guaranteed them in Section 7 of the
Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(aXl) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Since I have recommended to the Board that the Em-
ployer's objection to the election held on January 3,
1980, in Case 31-RC-4626 be overruled, and since I have
recommended to the Board that the Employer's refusal
to bargain with the Union be found in Case 31-CA-
10100 to be an unfair labor practice within the meaning
of Section 8(aXl) and (5) of the Act, I further recom-
mend to the Board that the Board issue the same type of
remedial order which the Board previously issued, but
rescinded, in this case as reported in the Board volume
as 252 NLRB 1243.
In order to ensure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, I rec-
ommend to the Board that the initial period of certifica-
tion be construed as beginning on the date Respondent
commences to bargain in good faith with the Union as
the recognized bargaining representative in the appropri-
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate unit. See MarJac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d
600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350
F.2d 57 (10th Cir. 1965).
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Doral Build-
ing Services, Inc., Los Angeles and Pasadena, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Stove, Furnace and Allied Appliance
Workers International Union of North America, AFL-
CIO, Local No. 125B, as the exclusive bargaining repre-
sentative of its employees in the following appropriate
unit:
All building maintenance employees employed by
Respondent at the following locations: in Pasadena,
California: 100 West Walnut Street, 75 North Fair
Oaks Street, 170 North Fair Oaks Street, and 80
South Lake Street; in Los Angeles, California: 714
West Olympic Boulevard, 1052 West 6th Street, 201
South Alvarado Street, and 133 South Lasky Drive;
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all em-
ployees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at all its Los Angeles, California, and Pasade-
na, California, locations copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 31, after
being duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(c) Notify the Regional Director for Region 31, in
writing, within 10 days from the date of this Order, what
steps have been taken to comply herewith.
In fairness to all of the parties in this proceeding, their
attention is called to the Board's Order Rescinding Deci-
sion and Remanding Proceeding to Regional Director
for Hearing dated February 24, 1982, and the 10-day time
limit specified therein for the filing of any exceptions to
this report with the Board in Washington, D.C. In part,
the Board's Order provides:
Within 10 days from the date of issuance of such
report, either party may file with the Board in
Washington, D.C., eight copies of exceptions there-
to. Immediately upon the filing of such exceptions,
the party filing the same shall serve a copy thereof
on the other party and shall file a copy with the
Regional Director for Region 31. If no exceptions
are filed thereto, the Board will adopt the recom-
mendation of the administrative law judge.
APPENDIX
NOTIcE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with Stove, Furnace
and Allied Applicance Workers International Union
of North America, AFL-CIO, Local No. 125B, as
the exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
employees in the bargaining unit described below,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit
is:
All building maintenance employees employed by
the Employer at the following locations: in Pasa-
dena, California: 100 West Walnut Street, 75
North Fair Oaks Street, 170 North Fair Oaks
Street, and 80 South Lake Street; in Los Angeles,
California: 714 West Olympic Boulevard, 1052
West 6th Street, 201 South Alvarado Street, and
133 South Lasky Drive; excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
DORAL BUILDING SERVICES, INC.
1222