Service America Corp.

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 736 (N.L.R.B. 1990)

736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Service America Corporation and Chauffeurs, Team-
sters, Warehousemen and Helpers , Local Union
No. 135 , International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America , AFL-CIO. Case 25-CA-17864
May 31, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 9, 1990, Administrative Law Judge
Robert T. Wallace issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to reaffirm its Order previously
issued in this case on August 15, 1986, and report-
ed at 281 NLRB 81.
ORDER
The National Labor Relations Board reaffirms its
Order previously issued in this case on August 15,
1986, and reported at 281 NLRB 81.
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
Further, in its exceptions the Respondent contends that employee turn-
over and the passage of time since the representation election require the
Board to set aside the election and order a second election We find no
merit in this contention See Bridgeport Fittings, 291 NLRB 358 (1988),
Einhorn Enterprises, 282 NLRB 248, 249 (1986), enfd 843 F 2d 1507, 1509
(2d Cir 1988)
In part (c) of his decision, in his discussion regarding dissemination of
the alleged threat, the judge mistakenly referred to Rodney Burns rather
than Chris Watson
Ann Ryboit, Esq., for the General Counsel.
Leslie Robert Stellman, Esq. (Littler, Mendelson, Fastiff &
Tichy), of Baltimore, Maryland , for the Respondent.
Steven Chestnut, Esq., of Indianapolis , Indiana, for the
Charging Union.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE , Administrative Law Judge.
Upon a charge filed by the Union on March ' 5, 1986, a
complaint was issued on March 10, 1986, alleging that
Respondent Service America Corporation' (SAC) re-
fused to bargain in violation of Section 8(a)(5) of the Na-
tional Labor Relations Act. The case was the subject of
a summary judgment decision on August 15, 1986; a peti-
tion for judicial enforcement on December 19, 1986; and
a remand by the Court of Appeals for the Seventh Cir-
cuit on March 7, 1988.
As framed by the Board's Order of June 27, 1988, the
issue before me is whether a close election won by the
Union on September 5, 1985,2 was invalidated by alleged
conduct and agency status of employee Rodney Burns,
thereby freeing SAC from any bargaining obligation.
The case was heard at Indianapolis, Indiana, on April
25 and 26, 1989. Based upon the entire record including
my observation of the witnesses and after due consider-
ation of briefs filed by the General Counsel and SAC, I
make the following
FINDINGS OF FACT
Burns' Alleged Statement
The only evidence of unlawful conduct on the part of
Burns derives from another employee, Chris Watson. He
was a night chef in the SAC commissary in Indianapolis
in 1985 and lead driver at the time of hearing.
Watson testified that about a week before the election3
between 3:30 and 4 a.m. he went out to a staging area
adjacent to the loading dock to lock milk cooler. Hear-
ing laughter from the dock area, he approached to
within 2 or 3 feet of at least three drivers who were
loading their vehicles. He could not see them because
they were around a corner. He paused for at least a
couple of minutes to hear what they were saying. At
first he was not paying close attention because they were
laughing and talking about "other things." Then he
heard Burns say that "people who were not for the
Union could be terminated or get hurt."4 At that point
the drivers resumed laughing and Watson withdrew into
the commissary.5
Testifying further, Watson claims he then met another
chef (Hai Nguyen) and told him he had just been threat-
ened by Burns; and he proceeded to tell Nguyen what
Burns had said. Later that same morning he successively
told other employees what happened including Nelma
1 Although Service America Corporation was a subsidiary of Alleghe-
ny Beverage Corporation when the complaint issued, it was subsequently
sold by Allegheny and the latter appears to have no significant involve-
ment in this case.
2 The Union received 24 votes, 20 votes were cast against representa-
tion, and there was one nondeterminative challenged ballot
S In an affidavit given on October 2, 1985, Watson states that the inci-
dent in question occurred 2 weeks before the election
4 This version of Burns' statement appears in Watson's affidavit of Oc-
tober 2, 1985 At the hearing he gave other versions, quoting Burns as
having said "guys can be terminated or get hurt" (Tr 193), "the union
can hurt people or get [them] terminated" (Tr 193), and "people that
was for the union was either going to be terminated, or going
to get hurt" (Tr. 208)
5 Watson surmises that the drivers knew he was nearby because (1)
light was emitted when he opened the commissary door, (2) the door
slammed shut as he entered the staging area, and (3) keys on his belt jan-
gled when he walked, and he opines that the "threat" was meant to be
heard by him because everyone knew he was against unionization
298 NLRB No. 102
SERVICE AMERICA CORP.
McClintock, Kathy Gross, Kathy Mahler, and Karrie
Slick; as well as Branch Manager Terry Harger.
I am not persuaded that any threat occurred.
Watson's testimony differs in significant respects from
statements in an affidavit given by him in 1985 shortly
after the election and from accounts given by other wit-
nesses called by SAC. For example, in the affidavit he
states that he told Nguyen that Burns had threatened him
"but that is all I told him and I did not tell him what
. . . [Burns] had said." For his part, Nguyen agrees that
Watson did not relate the content of the threat, and
Nguyen adds that Burns did not tell him where or when
the threat was made. Again, in his affidavit Watson avers
that he did not tell employees Mahler and Slick until ser-
veral days after the -alleged incident that he did not men-
tion who made the threat, that he told them it occurred
not on company premises but "Someplace else," and that
Mahler was the one who reported the threat to Branch
Manager Harger . Mahler's testimony accords with Wat-
son's affidavit account. Also in that affidavit he claims
not to have told employee Gross until a few days later
adding: "all I told her was that I had been threatened by
. .. [Burns] and the others [drivers]." Gross confirms
that account and she states that Watson did not tell her
where Burns made the threat.
In view of those variances, I conclude that Watson's
testimony is unreliable. In addition, I reject the affidavit
account finding it difficult to believe that a person who
felt threatened with physical harm would fail promptly
to tell others regarded as friends details concerning the
time, place, and content of the threat. Further, Watson
admits in the affidavit that he :fold Mahler and Slick that
the threat occurred "someplace" other than on company
property; and his explanation for that variance ("there
were other employees working in the commissary who
were strong for the union and I didn't want them to
overhear") makes no sense at all. He could have lowered
his voice, stopped talking, or taken other protective
action. He did,not have to misrepresent the claimed site
of the incident.
Agency
In light of the Board's directive on remand, I have
also considered evidence relative to Burns' alleged status
as an agent of the Union in the event that, on review, it
is determined that he did utter an unlawful threat; and I
find he was not an agent.
Two officials of the Union (Doug Schmidt and Danny
Moussette) conducted the 1985 campaign; and three em-
ployees, each of whom worked in a different area of the
SAC facility, served as their primary contacts and
sources of information throughout the campaign: Knight,
who worked in the warehouse ; Engelking, who was a
maintenance man; and Brenda Welch, who worked in
the commissary. Employee witnesses unanimously identi-
fied Knight and Engelking as the perceived leaders of
the campaign among the work force.
Between June 19 and August 30, 1985, a total of five
organizational meetings of employees were held. At least
one union official was in attendance at each. The Union's
office is located in the same city as the SAC facility, and
between meetings the officials made themselves readily
737
accessible to the SAC work force. Both officials in-
formed employees as to how they could be contacted at
their office, and Moussette provided his home telephone
number. All literature disseminated during the campaign
was authored by them. Although Knight and Engelking
may have distributed some handbills to employees at
work, the Union had access to employee names and ad-
dresses by virtue of the Excelsior list it had received the
year before and the ' majority, if not all, of the Union's
literature was sent by mail.
The totality of Burns' union activity during the cam-
paign consisted of the following:
a. He was 1 of 29 employees who executed authoriza-
tion cards.
b. He was 1 among 18 employees who volunteered to
serve on the Union's organizing committee.
c. He attended three of the five meetings conducted by
the Union.
d. At most, he asked two employees if they wished to
sign an authorization card.
Each of the union meetings were held at the union hall
or a local hotel. Burns did not assist in arranging these
meetings nor did he publicize them among the work
force. While the union officials sat at a table in front of
the audience at each meeting, Burns sat in the audience.
He did not wear or distribute union insignia or
paraphernalia, he had no contact with any union official
other than at the meetings and he never served as a con-
duit of information between any employee and the
Union. Burns neither telephoned nor met with coworkers
after work to solicit their support for the Union. Neither
he nor any other employee was compensated monetarily
or otherwise by the Union for their participation in the
campaign. At no time did the union officials introduce
Burns to anyone as a union spokesperson, contact, or
agent, nor did Burns misrepresent himself as such to
anyone.
At a meeting attended by 15 employees on June 24,
Schmidt and Mousette solicited' volunteers to serve on an
"organizing committee." They told the employees that
members' names would be provided SAC to ensure
proof that it knew of their union activity; and by letter
of June 26, the Union did so.6Everyone in attendance
volunteered to be on the committee. In actuality, the
committee had no role in the campaign. Twenty-seven of
the 29 authorization cards received by the Union were
executed prior to the formation of the committee. Com-
mittee members did not distribute union literature nor
did they wear or distribute insignia.
General principles of agency law govern the determi-
nation of an employee's agency relationship with a
union . An individual will be deemed a general agent if
such authority was expressly, impliedly, or apparently
conferred by a principal, and the principal will be liable
for the conduct of the agent regardless of whether the
specific acts performed by the agent were actually au-
6 The letter identified 15 employees, including Burns, as having author-
ized the Union to serve as their collective-bargaining agent, and it cau-
tioned SAC that any action taken against them because of union activity
was a violation of paw, citing Sep 7 of the Act No mention was made of
an organizing committee.
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thorized or subsequently ratified, so long as the agent
acted within the general scope of his authority, Long-
shoremen Union, 79 NLRB 1487 (1948); Teamsters Local
886, 229 NLRB 832 (1977).7
In the context of an organizing campaign, a general
agency will not be found solely because of membership
in an organizing committee, or the solicitation of authori-
zation cards, or because an employee is a vocal union
supporter, Pierce Corp., 288 NLRB 97 (1988); United
Builders Supply Co., 287 NLRB 1364 (1987); Tennessee
Plastics, 215 NLRB 315 (1974); Owens-Corning Fiberglas
Corp., 179 NLRB 219 (1969).
It is undisputed that at no time did the Union, through
speech or impliedly through conduct, confer upon Burns
the authority to act as its agent. Nor did the Union
engage in any conduct from which employees might rea-
sonably have perceived Burns as its agent. Burns himself
did not, through language or conduct, imply that he was
authorized to act on behalf of the Union. In Pierce Corp.,
supra, the Board found that an employee whose organi-
zational activities exceeded those of Burns in both degree
and kind was not an agent of the union. The employee in
Pierce was 1 of 22 members of the union's organizing
committee, and one of its more active members. As in
the case at hand, the union notified the employer of the
identity of committee members. The employee advised
coworkers of union meetings, distributed union literature,
provided the union with information for the preparation
of such literature, solicited authorization cards, and wore
union insignia. The Board concluded that the employee
was not a general agent of the union because, as here, it
maintained control of the campaign throughout; its offi-
cial was readily accessible to employees; and at no time
was the employee held out to coworkers as a person em-
powered to represent the union.
Similarly, in United Builders Supply Co., supra, the
Board concluded that an employee who was an active
and vocal union adherent, who arranged 18 to 25 union
meetings and publicized them among the work force,
who distributed authorization cards, and who telephoned
employees at home to solicit their support for the union,
was not an agent of the union. The Board concluded that
the union had not abdicated control of the campaign and
had made it clear to' employees that it had its own
spokesman apart from employee-union activists.
The evidence in the case at hand indicates that Burns
was no more active in the campaign than other rank-and-
file employees who executed cards, attended meetings,
and expressed prounion sentiments to coworkers. Conse-
quently, Burns was not an agent of the Union.
In addition, the evidence indicates that the Union did
not condone or ratify misconduct on the part of any em-
ployee during the campaign. At meetings Union Officials
Schmidt and Moussette each admonished employees to
avoid arguments and confrontations. On one occasion
when an employee reported a threatening comment
Sec 2(13) of the Act provides
In determining whether any person is acting as an "agent" of an-
other person so as to make such other person responsible for his acts,
the question of whether the specific acts performed were actually au-
thorized or subsequently ratified shall not be controlling, 29 U S.C. §
152(13)
made to her by another, Schmidt advised the employee
to ignore the remark. At no time prior to the election
was the Union apprised of the alleged threat attributed
to Burns. The allegation became known to the Union
only through the SAC's postelection objections.
No Prejudicial Atmosphere
Having found that Burns was not an agent of the
Union, the remaining question (again assuming a threat
to employees who did not support the Union) is whether
the threat caused or contributed to an atmosphere of fear
or coercion which destroyed laboratory conditions nec-
essary for a free and fair election. Lovilia Coal Co., 275
NLRB 1358, 1359 (1985); Westwood Horizons Hotel, 270
NLRB 802 (1987).
In making that determination, the Board considers nu-
merous factors, including the content of the words
spoken, whether they were accompanied by physical
gesture, the context in which the statement occurred,
whether the incident was isolated, and the scope of its
dissemination.
Here, the threat was made in the context of light
banter between drivers who were busy loading vehicles
in early morning darkness and the words used are vague
as to (1) when, and even if, dire consequences would
ensure ("people ... could be terminated or get hurt"
[emphasis added]), and (2) whether physical as well as
discharge or other economic discrimination was meant.
Further, I am not persuaded that the threat was directed
against and meant to be heard by Watson. Admittedly,
he was eavesdropping and was not visible from the load-
ing dock. That a door slammed behind him and his keys
jangled 2 minutes earlier does not establish that Burns
"must have known" he was there, particularly since
Burns and other drivers had jangling key clusters, rou-
tinely kept their truck engines running to assure trouble-
free starts in chill fall weather, and were busy working
as they chatted.8 And as to dissemination, Burns, accord-
ing to his contemporaneous account, chose not to reveal
the content of the threat and where and when it oc-
curred. Instead, he randomly told five friends that a
"threat" had been made, and he did not himself find it
important enough to report it to management.
I conclude that the threat itself had little or no effect
on the outcome of the election. Moreover, I find no pre-
vailing "atmosphere of fear" to which it could have con-
tributed. Indeed, as preelection campaigns go, this one
appears relatively tranquil. In that regard, I view as in-
nocuous an earlier outburst by the union adherent
8In the absence of a personalized threat, Watson's awareness that
Burns "pumped iron" and possessed a 44 caliber (magnum) handgun is
without particular significance. In this respect, I credit Burns' claim that
he had a permit Also, there is no evidence that Burns had a reputation
for being prone to violence In that regard , I am aware Burns on August
15, 1985, was given a written warning for being "belligerent and uncoop-
erative" to two female SAC employees and for threatening another with
bodily harm No dates, location names , or other clarifying details are
cited therein Burns denied any misconduct and SAC did not call any
witnesses, including the issuing supervisor In these circumstances, I view
the document with suspicion and accord it no weight, especially since it
was issued well after the campaign had begun and after Burns had been
identified to management as a union supporter
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 739
Mathes that "[g]uys like you [opponents of unionization]
don't give others a chance to vote. We had this bullshit
last time, [and] we are not going to have this bullshit this
year." Similarly of minimal effect are a claim (1) by
Watson that during a 2-day period before the election he
was harassed all night long by phone calls at the com-
missary wherein the caller would just hang up when he
answered. Even if the calls occurred,9 there is no evi-
dence linking them to the campaign and, admittedly, he
told no one about them; and (2) by McClintock that
during the course of a prior (1984) election campaign: (a)
9 Although Watson recalls that Chef Hai Nguyen was present when
some of the calls came in, the latter slid not recall any incident of that
type.
a union official (Moussette) said that people who do not
go along with the Union could be "roughed up," and (b)
her car sustained two slashed tires in the SAC parking
lot. However, absent credible evidence of misconduct
during the 1985 campaign, I regard those incidents (as-
suming they occurred) as too remote to prejudice the
result of the 1985 campaign.
CONCLUSION OF LAW
For the reasons stated above, I find that Burns was not
an agent of the Union and that his conduct had no signif-
icant impact on the election held on September 5, 1985.
In light of the limited nature of the Board 's remand
Order, no further action on my part is called for.