Tyson Fresh Meats, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1335 (N.L.R.B. 2004)

TYSON FRESH MEATS, INC.
343 NLRB No. 129
1335
Tyson Fresh Meats, Inc. and Carlos A. Perez, Peti-
tioner and General Teamsters Local 556, affili-
ated with the International Brotherhood of
Teamsters, AFL–CIO. Case 19–RD–3576
December 16, 2004
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to a decertifica-
tion election held April 8 and 9, 2004,1 and the hearing
officer’s report recommending disposition of them [per-
tinent parts attached as an Appendix]. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 708 for and 657 against the
Union, with 5 challenged ballots, an insufficient number
to affect the results of the election.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings2 and recommendations only to the extent consis-
tent with this Decision and Direction of Second Election,
and finds that the election must be set aside and a new
election held.3

1 Hereinafter, all dates are in 2004 unless otherwise noted.
2 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.
3 The Union renews its motion to dismiss the Employer’s objections,
based on the grounds that the petition and the entire election process
were “improperly affected by the fact that the Petitioner, Carlos Perez,
is now a supervisor and part of management.” The hearing officer, in
fn. 1 of his report, properly denied the Union’s motion as lacking in
merit because it is well-established that “where a petitioner becomes a
supervisor after the filing of a petition the process is not abated, as the
petitioner is only a representative of the employees who are interested
in a vote on continuing representation.” See Weyerhaeuser Timber Co.,
93 NLRB 842 (1951). We agree with the hearing officer’s ruling in
this matter and deny the Union’s motion.
In its opposition to the Employer’s exceptions, the Union contends
that the Employer’s exceptions should be dismissed because the Em-
ployer failed to attach the hearing officer’s report to its exceptions and
brief. Contrary to the Union’s argument, the Board’s rules do not re-
quire that the hearing officer’s report be attached to a party’s excep-
tions and brief. See Sec. 102.67(d) of the Board’s Rules and Regula-
tions.
Furthermore, we reject the Union’s contention, in its opposition to
the Employer’s exceptions, that the hearing officer erred in denying the
Union access to certain subpoenaed statements that the Employer had
in its possession regarding the Union’s alleged misconduct. The hear-
ing officer properly permitted the Union to review any statements pro-
vided to the Board in this matter or any prior matter under Sec.
102.118(b) and (c) of the Board’s Rules and Regulations, in accord
with the Jencks rule. See Jencks v. U.S., 353 U.S. 657 (1957). Accord-
Introduction
The Employer filed six timely objections to the elec-
tion. Objection 1 alleged that the Union, through its
agents and adherents, improperly communicated and
campaigned to employees who were waiting in line to
vote and to employees who were entering the polling
place. Objection 5 similarly alleged that the Union,
through its agents and adherents, engaged in electioneer-
ing in the voting area that was intended to intimidate
employees into voting for the Union. Specifically, the
Employer argued that union stewards, acting in their ca-
pacity as union agents, engaged in objectionable conduct
when they spoke with voters waiting in line to cast their
ballots in the election. Milchem, Inc., 170 NLRB 362
(1968) (election will be set aside if party to the election
engages in prolonged conversation with prospective vot-
ers waiting in line to cast their ballots, regardless of the
content of the conversation).
In addressing Objection 1, the hearing officer first
found that the union stewards were not union agents be-
cause they had neither actual nor apparent authority to
act on behalf of the Union. Accordingly, the hearing
officer found that the stewards did not violate the rule set
forth in Milchem, supra, which applies only to party mis-
conduct. Second, the hearing officer inadvertently ap-
plied the wrong standard for determining objectionable
electioneering by a third-party, and concluded that the
electioneering by the stewards was not so “aggravated”
as to have “create[d] a general atmosphere of fear and
reprisal rendering a fair election impossible.” Westwood
Horizons Hotel, 270 NLRB 802 (1984).4 Therefore, he
recommended that Objections 1 and 5 be overruled.
The Employer excepts to the hearing officer’s recom-
mendation to overrule Objections 1 and 5, and contends
that the stewards are union agents who engaged in sus-
tained conversations with voters in line, thus requiring
that the election be set aside. For the reasons set forth
below, we find merit in this exception. Accordingly, we
sustain Objections 1 and 5 and set aside the election.5
I. FACTS
The election took place during three voting sessions
over a period of 2 days (April 8 and 9). The polling area

ingly, we find that the Union was not prejudiced in its ability to cross-
examine witnesses.
4 In evaluating electioneering by nonparties, the standard is “whether
the conduct at issue so substantially impaired the employees’ exercise
of free choice as to require that the election be set aside.”
Hollingsworth Mgmt. Service, 342 NLRB 556, 558 (2004); Rheem Mfg.
Co., 309 NLRB 459, 463 (1992).
5 In light of our finding that the sustained conversations of the stew-
ards with voters waiting in line, warrant setting aside the election, we
find it unnecessary to pass on the hearing officer’s reasoning and con-
clusions with respect to the remaining objections.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1336
was in the conference room in the far corner of the cafe-
teria opposite the processing floor. The processing lines
shut down shortly before the opening of the polls in each
voting session, resulting in a large number of voters at-
tempting to vote at the same time. Employees sometimes
had to wait an hour or more in line before voting.
During the morning voting session on April 8, two
long lines of voters formed from the conference room
through the cafeteria and into the hallway outside the
cafeteria. During this same time period, the cafeteria was
open for employees to eat lunch and take breaks. (The
cafeteria can accommodate a few hundred people.) Unit
employees Augustin Padillo and Jubinito Soto, along
with Union Steward Pedro Hernandez, were sitting
and/or standing around a cafeteria table adjacent to the
entrance to the voting room. The voting line snaked by
this table. As the voters passed by the table on their way
to cast their ballots, Hernandez, Soto, and Padillo told
voters in line to vote for the Union. The record shows
that the three men were at this table talking to employees
in line to vote for nearly 1 hour.
According to the credited testimony, steward Hernan-
dez also spoke with voters, for a period of 5 to 30 min-
utes, near or at the entrance to the voting room. Em-
ployee Cristina Reyes testified that steward Hernandez
approached her while she was waiting in line to cast her
ballot and told her to vote for the Union.
During the evening voting session on April 8, employ-
ees waited in a line that extended through the cafeteria to
the conference room to vote. Union Steward Raul Alva-
rado spoke to employees waiting in line. Alvarado spoke
to two female employees in line for a period of 5 to 10
minutes each.
Alvarado is one of two stewards who wear a blue
hardhat at the Employer’s facility.6 Employee Dinh
Pham testified that a “blue hat” named “Raun” talked to
him and other voters in line and told the prospective vot-
ers to vote Union. Employee Trang Ha testified that a
“blue hat” was speaking in Spanish to voters in line for
approximately 5 to 10 minutes during the “B shift” vot-
ing session. Employee Nghia Kieu, a “B shift” em-
ployee, also testified that a “blue hat” was talking to
people in line for 30 minutes.
Steward Amir Mustafic testified that, during the eve-
ning voting session, he discussed the Union and the elec-
tion with voters in line for approximately 10–15 minutes.

6 The record demonstrates that stewards wore purple hardhats at the
facility. However, Alvarado and steward Benigna Diaz wore blue
hardhats because, in addition to being stewards, they were “supervisor
helpers.”
II. ANALYSIS
The Board has long maintained that an election must
be set aside when one party engages in “prolonged” con-
versations with voters waiting in line to cast their ballots.
Thus, in Milchem, Inc., 170 NLRB 362, 362 (1968), the
Board reasoned that “the potential for distraction, last
minute electioneering or pressure, and unfair advantage
from prolonged 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 such
conversations.” The Board concluded that the final min-
utes before a voter casts his ballot should be his own, “as
free from interference as possible.” Id.
The requirements of Milchem are as follows: (1) con-
duct by a party and (2) that involves prolonged conversa-
tions with employees waiting in line to vote. Therefore,
two questions must be answered in determining whether
this election should be set aside under the rationale of
Milchem. The first question is whether the stewards who
were talking to the voters in the voting line are agents of
the Union. If so, the second question is whether they
engaged in prolonged conversations with voters waiting
in line to vote. We answer both questions affirmatively
and find that the election must be set aside. Our reasons
follow.
A. The Union Stewards had Actual and Apparent
Authority to Represent the Union
The burden of proving an agency relationship is on the
party asserting its existence. Millard Processing Ser-
vices, 304 NLRB 770, 771 (1991), enfd. 2 F.3d 258 (8th
Cir. 1993), cert. denied 510 U.S. 1092 (1994). The de-
termination of whether this burden has been met rests on
an analysis of the facts under common law agency prin-
ciples:
[A]ctual authority refers to the power of an agent to
act on his principal’s behalf when that power is cre-
ated by the principal’s manifestation to him. That
manifestation may be either express or implied. Ap-
parent authority, on the other hand, results from a
manifestation by a principal to a third party that an-
other is his agent. Under this concept, an individual
will be held responsible for actions of his agent
when he knows or “should know” that his conduct in
relation to the agent is likely to cause third parties to
believe that the agent has authority to act for him.
Restatement 2d, Agency, § 27.
Communications Workers Local 9431 (Pacific Bell), 304
NLRB 446 fn. 4 (1991).
Furthermore, with respect to a principal’s liability for
the actions of its agent, the Board in Bio-Medical Appli-
TYSON FRESH MEATS, INC. 1337
cations of Puerto Rico, 269 NLRB 827, 828 (1984),
stated:
A principal is responsible for its agents’ conduct
if such action is done in furtherance of the princi-
pal’s interest and is within the general scope of au-
thority attributed to the agent . . . it is enough if the
principal empowered the agent to represent the prin-
cipal within the general area in which the agent has
acted.
Applying these factors, we find that the Employer has
established that the stewards had both actual and appar-
ent authority to represent the Union in the circumstances
of this case.7
1. The union stewards had actual authority
The Board has placed probative value on an alleged
agent’s position as steward, finding that a steward is “the
first union representative the members look to, and the
man from whom they take their cues insofar as union
policy is concerned.” Battle Creek Health System, 341
NLRB 882, 893 (2004), citing Teamsters Local 886 (Lee
Way Motor Freight), 229 NLRB 832 fn. 5 (1977), enfd.
586 F.2d 835 (3d Cir. 1978), quoting Carpenters Local
2067, 166 NLRB 532, 540 (1967). Placing such value
on the steward position is particularly warranted here,
where the Union encouraged employees to perceive the
stewards as representatives of the Union by giving them
the responsibility of orienting new hires to the benefits of
unionization. Furthermore, there is evidence that em-
ployees did in fact seek information from the stewards
about the Union and the election. For example, steward
Mustafic testified that many of the Bosnian employees
asked him questions regarding the election and for his
thoughts concerning the election.
The parties’ collective-bargaining agreement is further
evidence that the stewards have actual authority to repre-
sent the Union. Article XI of the agreement provides
that stewards have the express authority to present griev-
ances on behalf of employees. Teamsters Local 886 (Lee
Way Motor Freight), supra at 833 (union steward was an
agent of the union because he had, inter alia, express
authority from the union to receive, process, investigate,
and ensure employer compliance on employee griev-
ances).
Finally, the record shows that stewards regularly par-
ticipated in labor-management meetings throughout the
year. In the 12-month period before the hearing, there
were eight or nine such meetings, where safety issues

7 Member Walsh relies solely on the finding that the stewards have
apparent authority.
were discussed.8 Although not all stewards attended
these meetings, the stewards involved in the conduct at
issue in this case did so.
All of these factors establish that the Union gave a
range of actual authority to the stewards to represent it in
the workplace, including the authority to speak on behalf
of the Union about the benefits of unionization. Speak-
ing about union benefits to voters waiting to participate
in the election falls within this range. That there is no
affirmative evidence that the Union specifically author-
ized the stewards to participate in the election campaign
does not warrant a contrary result. “It is enough if the
principal actually empowered the agent to represent him
in the general area within which the agent acted.” Team-
sters Local 886, 229 NLRB at 832–833 (quoting Long-
shoremen ILWU Local 6 (Sunset Line & Twine Co.), 79
NLRB 1487, 1509 (1948). Accordingly, we find that the
stewards had actual authority to represent the Union
when they spoke to voters in the voting line.
2. The union stewards had apparent authority
Under the principle of apparent authority, the Em-
ployer established that the Union created a perception
among employees that the stewards represented it when
they spoke to employees waiting in line to vote. As dis-
cussed above, the Union gave the stewards the responsi-
bility to introduce new employees to the benefits of the
Union. The stewards also wore purple hardhats to sig-
nify their status as union stewards. Employees knew the
stewards by their hats if not by their names. Several em-
ployees testified that the “purple hat” wearers “worked
for the Union.” In the eyes of these employees, the
stewards were essentially equated with the Union.
The visual designation of union stewards, coupled with
the Union’s holding the stewards’ out as being responsi-
ble for orienting new employees to the Union, reasonably
gave employees the impression that the stewards were
acting on behalf of the Union in providing information
concerning the Union and its benefits. Thus, when the
“purple hat” stewards stood by the voting lines near the
entrance to the polling place, the Union had “cloaked
[them] with sufficient authority to create a perception
among the rank-and-file that [they acted] on behalf of the
union[.]” Kitchen Fresh, 601 F.2d at 355.
In light of these facts, we find that the Employer estab-
lished that the Union either intended employees to be-
lieve that the stewards were acting for the Union when
they spoke to employees in the voting line or that the
Union should have realized that the employees waiting in
line to vote would have perceived the stewards as Union

8 There was no evidence concerning discussion of other matters at
the labor/management meetings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1338
agents. Accordingly, we find that, under the principle of
apparent authority, the Union had responsibility for the
stewards’ conduct in speaking to employees about the
benefits of Union representation.
B. Union Stewards Engaged in Improper
Conduct Under Milchem
Having determined that the stewards are union agents,
as outlined above, we turn to the question whether the
stewards engaged in objectionable conduct under Mil-
chem, 170 NLRB 362 (1968). As discussed above, Mil-
chem establishes a strict rule against “prolonged” con-
versations between representatives of a party to the elec-
tion and employees waiting in line to vote, regardless of
the content of the conversations. In Milchem, there was
evidence that Union Secretary-Treasurer Stevens held
conversations for “several minutes” with employees
waiting to vote. There was also evidence that Stevens
appeared to be talking to employees waiting to vote for
“perhaps five minutes.” The Board concluded that “Ste-
vens’ conduct [in speaking to voters in line] could not, in
any view of the evidence, be dismissed as minimal.”
Thus, the Board found that Stevens’ conversation
breached the Milchem rule and set aside the election.
Here, the conversations between stewards and employ-
ees waiting to vote are similar in duration to the conver-
sation at issue in Milchem. As described earlier, voters
in the morning and evening sessions on April 8 stood in
long lines stretching through the cafeteria while waiting
to vote in the election. Many voters were in line for an
hour or more. Stewards Mustafic, Alvarado, and Her-
nandez stood near or sat at a cafeteria table close to the
voting line. Steward Mustafic, by his own admission,
spent 10 to 15 minutes speaking with voters in line. It is
undisputed that steward Alvarado spoke to two women in
the voting line for a period of 5 to 10 minutes each.
Steward Hernandez spent nearly an hour at a table near
the entrance to the voting room and spoke with various
employees as they waited in line to vote.
These conversations of at least 5 to 10 minutes be-
tween agents of the Union and employees waiting to
vote, like the union official’s conversation of “several
minutes” in Milchem, constitute the type of “prolonged”
conversations strictly prohibited by Milchem.9 Accord-

9 We are aware that the Milchem Board cautioned that its establish-
ment of a strict rule did not mean that “any chance, isolated, innocuous
comment or inquiry by an employer or union official to a voter will
necessarily void the election.” Milchem, supra at 363. The duration of
the conversations at issue here precludes any finding that they are the
sort of chance, isolated, innocuous comment that falls outside the Mil-
chem rule.
ingly, we shall set aside the election and direct that a new
election be held.10
[Direction of second election omitted from publication.]
APPENDIX
HEARING OFFICER’S REPORT AND
RECOMMENDATION ON OBJECTIONS
This report contains my findings and recommendations re-
garding six Employer Objections2 to the April 8 and 9, 2004
election that the Union won by a vote of 708 to 657 (with 1495
eligible voters), with 5 nondeterminative challenges. The Em-
ployer objections and my recommendations are summarized as
follows:
(1) The Union (through its agents and adherents) engaged in
improper electioneering and campaigning in the customary area
near or at the polls. My findings are that certain electioneering
did occur but my recommendation is that it was not legally
attributable to the Union and not sufficient under third-party
standards to overturn the election.
. . . .
(5) The Union (through its agents and adherents) engaged in
electioneering in the voting area.
. . . .
Upon the entire record in this proceeding,3 and from my ob-
servations of the witnesses,4 I make the following findings of
facts, conclusions and recommendations:

10 Inasmuch as we have found that the stewards acted as agents of
the Union, we need not pass on whether their conduct would have upset
the election under the third party standard.
2 In an argument not presented at hearing, the Union contends the
objections were not served by the Employer on the Petitioner and only
served on counsel for the Union. Sec. 102.69(a) of the Board’s Rules
and Regulations, as amended, provides that an objecting party timely
serve the objections with the Regional Director who will then serve the
objections on the parties. The record shows the objections were timely
served on the Regional Director and the Regional Director did subse-
quently serve all parties with the objections. This contention is clearly
without merit and is rejected.
3 The hearing was conducted in accordance with the provisions of
Sec. 102.69 of the Board’s Rules and Regulations. All parties were
afforded full opportunity to be heard, to present and examine witnesses,
to introduce evidence and to submit position statements if they so de-
sired. The Employer and the Union filed briefs, which were considered.
The Employer filed a motion to correct the transcript and that mo-
tion is granted. I also note there were other transcription errors not
specified, but none of the additional errors were of a nature that would
impact the substance of the transcript to a future reader.
Although not every bit of evidence or every argument is specifically
addressed, I have nonetheless, considered all matters. Unless otherwise
indicated, credibility resolutions have been based on my observations
of the testimony and demeanor of the witnesses at the hearing. 3-E Co.
v. NLRB, 26 F.3d 1, 3 (1st Cir. 1994); NLRB v. Brooks Camera, Inc.,
691 F.2d 912, 915 (9th Cir. 1982). All witness testimony has been
considered even though I may not detail all potential conflicts in testi-
mony. Walkers, 159 NLRB 1159, 1161 (1966).
4 The Union argues that I was in error in not permitting the Union to
subpoena statements given to the Employer by witnesses in this pro-
ceeding. Counsel for the Union argues the lack of these statements
TYSON FRESH MEATS, INC. 1339
Objection 1. “The Union, acting through its agents and ad-
herents, unlawfully communicated and campaigned to employ-
ees waiting in line to vote and actually entering the polling
place. Specifically these union agents and adherents discussed
how employees would be voting and directed employees enter-
ing the voting area to vote for, the Union. Such conduct of the
Union, acting through its adherents, interfered with, coerced,
and restrained employees in the exercise of their Section 7
rights and destroyed the laboratory conditions under which the
Board mandates that elections must beheld.”
This objection has to be viewed in the context of three fac-
tual areas: (1) the stipulated voting arrangements. The polling
took place over 2 days at three locations on the first day and
one location on the second day. The primary alleged objection-
able conduct arises prone location during the two shifts on the
first day. The first shift (A shift) voted between 9 a.m. and 2:30
p.m. and the second shift (B shift) voted between 6 p.m. and
11:30 p.m. on April 8, 2004. There was an additional polling
period from 11:30 a.m. to 2 p.m., in a separate polling area that
same day. (2) The actual “electioneering” alleged to have taken
place and (3) the agency status of those individuals who en-
gaged in any conduct. In order to find the Union responsible for
any objectionable conduct, the stewards must be found to be
agents of the Union. If the stewards are agents of the Union
then the Milchem5 standards can be applied to the conduct in
question. If the stewards are not agents then the third-party
standards will, apply in analyzing any objectionable conduct.
See Cal-West Periodicals, Inc., 330 NLRB 599, 600 (2000);
Westwood Horizons Hotel, 270 NLRB 802, 803 (1984).
The bulk of the testimony concerned the events occurring at
the processing cafeteria and processing conference room lo-
cated adjacent to the cafeteria. These circumstances can be
categorized into two areas: The first is the general electioneer-
ing taking place in the cafeteria and the second is the one-on-
one electioneering with voters waiting on line.
The processing lines shut down shortly before the opening of
the polls and this created a large number of voters attempting to
vote at the same time. The polling area (conference room) was
located in the far corner of the cafeteria opposite the processing
floor. By virtue of the large number of voters appearing at the
same time, lines formed across the cafeteria leading to the poll-
ing area. In addition, the cafeteria was open for employees to

([t]he testimony shows there were some statements in addition to those
provided to the Regional Director) prejudiced its ability to properly
cross-examine certain witnesses. I ruled that the teachings of Anheuser-
Busch, 237 NLRB 982 (1970), applied to this situation and that the
Union could not have access to statements prior to a witness’s testi-
mony, nor could the Union have access to statements not provided to
the Regional Director, unless they were used to refresh a witness’s
memory under Rule 612 of the Fed. R.Evid. I did permit counsel for the
Union to review any statements provided to the NLRB in this matter or
any prior matters under the proscriptions of the Jencks rule. (353 U.S.
657, 672 (1957)). Contrary to the Union’s assertions, the Jencks rule is
applicable in postelection hearings. See Sec. 102.118(c) of the Board’s
Rules and Regulations. The Union’s assertions as to their right to exam-
ine such statements provided to the Employer is unsubstantiated and I
find there was no prejudice to the Union’s ability to cross examine
witnesses.
5 170 NLRB 362 (1968).
eat lunch and take breaks during this time. The voting lines
wound through and adjacent to the seating areas in the cafeteria
as well as the hallway areas next to the cafeteria. There was
quite a bit of commotion when the lines first formed and some
witnesses testified they waited up to an hour6 from the time
they arrived on line to actually voting. During the initial stages
of the morning polling times there is clear evidence that some
individuals came into the cafeteria shouting or yelling prounion
campaign slogans such as “union, si” or “union, yes.” The indi-
viduals engaging in this behavior were unit employees (at least
one was a steward on the B shift–Raul Alvarado) and after a
few minutes, variously defined as anywhere from 3 to 15, one
of the Board agents came out of the polling room and told the
people to keep it down or words to that affect. Thereafter the
louder election slogans ceased. There was a power failure for
15 minutes later in the morning and that created an environ-
ment for a few minutes of generally raucous behavior. How-
ever, the voting line had greatly dissipated by that time and any
inappropriate behavior was very limited and ceased when the
power came back on.
The Employer also points to individual behavior in support
of this objection. The evidence shows that a number of indi-
viduals spoke to employees waiting on line and as they ap-
proached the voting area. Alavarado spoke to employees wait-
ing in line on the evening voting period (B shift), but the testi-
mony does not show any content of what Alvarado said to em-
ployees other than “union, si” or words to that effect, on some
occasions. There is some conflicting testimony as to exactly
what Alvarado said but there is enough testimony from wit-
nesses to show that Alvarado was telling at least a few employ-
ees to vote for the Union. There are some discrepancies be-
tween the testimonies of various witnesses7 but I find that Alva-
rado did tell some employees to vote for the union as they were
waiting on line in the cafeteria. Alvarado also told employees to
use a pen rather than a pencil to mark the ballots and mentioned
this to other stewards to pass on to the voters.
Steward Amir Mustafic also passed on this pen vs. pencil in-
struction to some Bosnian speaking employees while they were
on line. Mustafic also discussed his views in favor of the Union
when waiting voters asked him for his opinion.
During the morning shift (9 a.m.–2 p.m.), the objections fo-
cus on Steward Pedro Hernandez speaking to voters and the

6 There was varying testimony about the length of time the initial
voters had to wait in line but it was clear that the voters had to wait a
significant amount of time to vote if they arrived at the opening of the
polls. Later arrivals did not have to wait nearly as long. I am not mak-
ing any credibility determinations based on time recollections unless
the timeframe is so far out of connection with reality to be clearly mis-
taken. Individuals have differing perceptions of how fast time passes
and unless they were looking at a clock or watch, estimates of the pas-
sage of time can be very inaccurate. Time can pass quickly in an indi-
vidual estimation if an event is pleasurable or very slowly if it is a
chore or something deemed unpleasant.
7 There appears to be at least four languages spoken by employees:
English, Spanish, Vietnamese, and Bosnian. Only a small number of
witnesses were multilingual. The bulk of the witnesses only had limited
knowledge of any of the other three languages and this impacted ex-
actly what they heard being said in most of the contexts of these objec-
tions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1340
presence of a group of employees/stewards near or at the en-
trance to the voting area. As noted above, the line to the actual
voting area (conference room) snaked through the cafeteria
from two beginnings on the opposite side of the room. The
cafeteria is fairly large and can hold a few hundred people.
There are numerous tables for employee’s use and the lines
went past these tables, which were used, by various groups of
employees to eat or just talk about various subjects, including
the election. One group of employees, Augustin Padillo (unit
employee), Jubinito Soto (unit employee), and Hernandez (unit
employee/steward) for some unknown period of time were
sitting or standing at a table adjacent to the entrance to the vot-
ing conference room. Padillo and Soto were present at this table
for an extended period of time (an hour or more) while Hernan-
dez was there for a more limited period of time. The evidence
shows that Padillo, Soto, and Hernandez were asking the voters
to vote for the union as they passed by and at one point Padillo
showed the voters a replica of a ballot marked yes. Padillo put
the document away when asked to do so by a Board agent. The
record shows that Padillo was the prime conversationalist in
these encounters at the table. There was additional testimony
pointing to Padillo’s presence in a chair at the door to the vot-
ing conference room. I find that it is unlikely that Padillo was
sitting in a chair at the entrance to the voting area ([t]here was a
door leading into the hallway outside the conference room
which had another door—both doors were open at all times
during the polling). There is ample credible evidence that
Board agents came out of the voting area to tell employees to
keep down the noise. In addition, the evidence shows that dur-
ing at least part of the polling time a board agent was at the first
door to expedite the identification process. The presence of a
voter sitting at the entrance to a voting area is not likely to have
been tolerated by a Board agent. Other witnesses testified they
did not see Padillo sitting at the door but at the nearby table. On
balance I find the credible evidence to show that Padillo was at
the nearby table and not sitting next to the door.
This factual scenario and objection raises the issue as to
whether the stewards can be considered agents of the Union for
the purposes of objectionable conduct. The record shows the
stewards are appointed by the Union and not elected to those
positions.8 Their primary purpose is to enforce the contract,
although they are only mentioned in the collective-bargaining
agreement as a potential step-one grievance representative. An
employee can present their own grievance if they so choose.
The stewards were not given an official, formal role in the elec-
tion campaign in this matter, although they did make their
views known to employees. Stewards do run the new employee

8 The Employer asked me to take judicial notice of an LM-2 Report
for 2003 (filed in early 2004). This report shows one of the stewards,
Raul Alvarado, serving in a trustee (elected) position sometime in 2003.
While this should been have submitted at the hearing, it is a public
document and I see no prejudice in reviewing the document. It does
show that Alavarado was a trustee sometime in 2003 but it also shows
he was a past trustee and no longer in that position at the end of 2003.
Testimony also showed that Alvarado’s trustee position ended in early
2003: Since the operative events covered by these objections are in
2004, Alvarado’s position as trustee sometime in 2003 is not probative
and has no impact on his agency status.
union orientation, although it is also run by union officials on
occasion. Stewards do participate in monthly9 labor/man-
agement meetings, but not all stewards participate in all meet-
ings. There was no evidence as to exactly what occurs at these
meetings other than to discuss safety issues. The stewards wear
distinguishing purple hardhats in most cases and are exempt
from paying union dues.
The burden of proving an agency relationship is on the party
asserting its existence. Millard Processing Services, 304 NLRB
770, 771 (1991), enfd. F.3d 258 (8th Cir 1993), cert. denied
510 U.S. 1092 (1994). The Employer points to Battle Creek
Health System, 341 NLRB 119 (2004), as supporting its posi-
tion that the stewards were agents of the Union. This reliance is
somewhat misplaced as the steward in Battle Creek was
elected, a member of the bargaining committee and specifically
authorized to represent the union in the decertification cam-
paign. However, Battle Creek, supra at 11, supplies an excellent
outline of the principles of agency applied under the Act.
“Agency is established if the evidence shows that the union
‘instigated, authorized, solicited, ratified, condoned or adopted’
the statements at issue” citing Kitchen Fresh, Inc. v. NLRB, 716
F. 2d 351, 355 (6th Cir. 1983).
The evidence shows some of the stewards (as well as other
bargaining unit employees) were active on the days of the elec-
tion in speaking to other employees in the cafeteria while they
were waiting to vote. While I personally find it hard to believe,
there was no record evidence showing that the stewards had
any role in the decertification campaign. The stewards only
acted as bargaining unit employees in speaking their minds
about voting for the Union. The stewards are not elected; only
handle grievances at the first-step level, participate in new em-
ployee orientation and sporadically participate in labor-
management meetings. There is no evidence that the collective-
bargaining agreement gives them any special roles or duties
other than mentioned above, there is no evidence that the by-
laws or constitution of the Union imparts any special duties on
stewards and there is an absence of evidence showing the stew-
ards had any role in the decertification campaign. I note there
were no witnesses describing any electioneering or pamphlet-
ing outside of what is described above. Weighing all of these
factors I cannot conclude that the stewards were agents of the
Union in any actions taking place during the campaigning and
during the actual election itself.
The absence of agency status leads me to analyze the elec-
tion conduct under the third-party standards. The Board will set
aside an election on the basis of third-party conduct only if the
conduct is so aggravated that it creates a general atmosphere of
fear and reprisal rendering a fair election impossible. Westwood
Horizons, supra. The Board and the courts recognize that con-
duct by third parties is less likely to effect the outcome of an
election, and that because unions cannot control nonagents; the
equities militate against setting aside elections on the basis of
conduct by third parties. Corner Furniture Discount Center,
339 NLRB 146 (2003). The “electioneering” conduct by third-
party individuals in this matter consisted of chanting prounion

9 The meetings do not routinely occur every month and in the past 12
months there were an estimated eight or nine such meetings.
TYSON FRESH MEATS, INC. 1341
slogans during the earlier stages of voting and individual con-
versations between third party individuals and voters while
they were waiting on line to vote. In Boston Insulated Wire &
Cable Co., 259 NLRB 1118 (1982), enfd. 703 F.2d 876 (5th
Cir. 1983), the Board set out a series of factors to be considered
in electioneering cases. These factors include (1) the nature and
extent of electioneering, (2) whether it was conducted by a
party or by employees, (3) whether the conduct was in a desig-
nated no electioneering area, and (4) contrary to the instructions
of a Board agent. While the cafeteria was not necessarily a no-
electioneering zone, it is clear from Milchem and its progeny
that the voting line is part of any no-electioneering zone. See,
e.g., Golden Years Rest Home, 289 NLRB 1106 (1988); West-
wood Horizons Hotel, supra; Boston Insulated Wire, supra.
There was a significant amount of electioneering, but under the
third part standards it does not rise to a level that is so aggra-
vated it would cause a general atmosphere of fear and reprisal.
It is campaign puffery without threats (I will discuss the threat
possibility under Objections 2 and 4) and propaganda by indi-
viduals and under the above analysis is not objectionable con-
duct. I would overrule this objection.
. . . .
Objection 5. “The Union, acting through its agents and ad-
herents engaged in electioneering in the voting area that was
intended to intimidate employees into voting for the Union. Not
only did the Union’s agents and adherents engage in such elec-
tioneering, but Union representative Maria Martinez was also in
the cafeteria during the poling period and yelled and screamed
at employees waiting in line to vote. The electioneering could
be heard in the polling place.”
This objection has some of the same bases as Objection 1
with the addition of Martinez’ presence during some of the pro-
union yelling during the initial stages of the voting. Woolery,
an A shift unit employee, testified that she saw Martinez in the
cafeteria as the A shift voting commenced at 9 a.m. on April 8.
Woolery testified that Martinez was present during some of the
initial yelling for the union and did nothing to calm down the
electioneering. The evidence, including the Employer’s security
logs17 show that Martinez could not have been in the cafeteria
during the polling times. Martinez arrived with other union
representatives and even though there is no log in or log out for
Martinez, the other accompanying individuals left at 9:03 a.m.
Woolery was mistaken at best and I do not credit her recollec-
tion as to these events.18 I find that Martinez was not present in
the cafeteria after the morning opening of the polls and could
not have been present during any chanting right after the polls
opened on the A shift.
There was one additional instance of Martinez presence dur-
ing a polling period. The evidence shows that Martinez (along
with one other identifiable union individual—Peyreya) was
signed in at 5:30 p.m. and signed out at 6:15 p.m. on April 8.

17 These logs keep track of all nonemployee visitors to the plant and
the security personnel enter the times. In the absence of other convinc-
ing, credible evidence I find the security log shows that Martinez was
signed out of the plant at 9:03 a.m.
18 This does not impact my factual findings as to the damage to
Woolery’s vehicle referred to above under Objection 2.
The B-shift voting started at 6 p.m. B-shift employee Trinh
Pham testified she saw Martinez talking to employees in the
cafeteria for about 15 minutes after 6 p.m. that same evening.
Pham seemed to be a little confused about the precise times she
spent in the cafeteria. She did not vote until approximately 7
p.m. and sat in the cafeteria talking with friends from 6 to 7
p.m. Initially, she testified she saw Martinez at 7 p.m. and then
changed to 6 p.m. She testified that she ate after she voted until
about 8 p.m. but in her testimony all of these times became
confused. Pham only spoke Vietnamese and may have been
confused by the translation process. Martinez testified that she
left the cafeteria shortly before 6 p.m. and spoke to an em-
ployee in the hallway before leaving the plant, thus accounting
for the extra 10 or so minutes between the beginning of the
polling and her leaving the plant. Pham did not overhear any of
the putative conversations between Martinez and employees
nor did she have any estimate of the number of employees in-
volved. I find that the security logs are the best evidence of the
times Martinez entered and left the plant in both situations, and
that she left the security shack at 6:15 p.m. on April 8.
As I noted above, unless individuals are referencing time by
a watch or a clock, estimates of time are relatively inaccurate. If
I take Pham’s estimates at face value then Martinez was in the
cafeteria until about 6:15 p.m. Given my finding that the secu-
rity logs are the most reliable evidence, this is physically im-
possible since it takes at least 5 minutes or more to transit from
the cafeteria to the security shack. Martinez knew the conse-
quences of being in the polling area after the polls opened but
may have been delayed a minute or two as she left the area.
There is no evidence as to what Martinez may have said to any
voters in the cafeteria. My finding is that Martinez may have
lingered a minute or two after 6 p.m. as she left the area and
then talked to an employee in the hallway on her way out of the
facility. Pham’s estimate of Martinez spending 15 minutes talk-
ing to employees on line in the cafeteria does not comport with
the physical facts. Employees were released to vote and lined
up in the cafeteria. The lines were long and it took over an hour
for voters to wait in line from 6 p.m. on. There has to be some
time allowance for voters to line up at 6 p.m. and taking this
with the other factors I mentioned above, I find that Martinez
was not talking to voters in line after the polls opened.
However, assuming arguendo that Martinez was present in
the cafeteria for 5 minutes or so after the polls opened, this is
not sufficient under Milchem to overturn the election. The cafe-
teria was not initially designated as a no-electioneering area and
this only developed as a matter of law as the lines of waiting
voters grew and snaked across the cafeteria: As discussed
above, the lines of voters are considered by the Board to be part
of the polling area. However, in the instant case Martinez was
located at the fringes of the line area and even if she spoke to
waiting voters it was at the very end of any line, we do not
know what was said to employees and it was possibly a circum-
stance where Martinez may have spoken briefly to some indi-
viduals for a few minutes at best. I do not know the subjects
addressed in these conversations and cannot make any findings
as to what was said. Brief social pleasantries or work-related
discussions are generally not considered objectionable under
the Milchem rule. See Sawyer Lumber Co., 326 NLRB 1331
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1342
(1998); Dubovsky & Sons, 324 NLRB 1068 (1997), citing
NLRB v. Vista Hill Foundation, 639 F.2d 479 (9th Cir. 1980),
enfg. 239 NLRB 667 (1978) (six brief conversations, some
discussing election, not objectionable).
Based on my findings and analysis above I recommend that
this objection be overruled.