Corner Furniture Discount Center, Inc., 1122 (2003)

Corner Furniture Discount Center, Inc., and Local 531, International Brotherhood of Teamsters, AFL-CIO, Petitioner. Case 2-RC-22448

August 21, 2003

DECISION AND CERTIFICATION OF REPRESENTATIVE

BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA

The National Labor Relations Board, by a three-member panel, has considered objections to an election held October 22, 2001, and the administrative law judge's decision recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The revised tally of ballots shows six for and five against the Petitioner, with no challenged ballots.

The Board has reviewed the record in light of the Employer's exceptions and brief, has adopted the judge's findings and recommendations as explained below, and finds that a certification of representative should be issued.

The Employer contends in Objection 2 that prounion employee Terence Cosgrove interfered with the election by threatening three bargaining unit employees that how they voted would become known by the Union and that if they voted against it, they would suffer reprisals. Like the judge, we reject this contention.

The credited testimony establishes that Cosgrove told employee Naded Santos that "they" would know how each employee voted. Santos subsequently informed her coworker "Sulky" about Cosgrove's statement. According to employee Carlton Ainsley, Cosgrove told him that "they would know, he would know" how Ainsley voted. Employee Edmund Brunning testified that during one discussion with Cosgrove where they tried to "figure out how everyone was voting," Cosgrove similarly told him that the election would not be by secret ballot, and that after the election he would know which employees voted and how they had voted. The judge overruled the objection, finding that the employees were only told that Cosgrove or "they"-not the Union-would know how the employees voted and that Cosgrove was not shown to be the Union's agent.

We agree that Cosgrove's statements do not warrant setting aside the election. We find, as the judge did, that the record fails to establish that Cosgrove was the Union's agent when he made the statements, and that viewed as third-party conduct, the statements were not objectionable conduct which would tend to create a general atmosphere of fear and reprisal rendering a free election impossible. We so find even if we assume, unlike

the judge, that the statements constituted implicit threats of reprisal1 rather than simple misstatements of fact.2

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); Pierce Corp., 288 NLRB 97, 101, fn. 65 (1988), citing Sunset Line & Twine Co., 79 NLRB 1487, 1508 (1948). Here, the Employer does not allege that Cosgrove had actual authority to make the remarks in question. Rather, it contends that he was clothed with apparent authority to speak on behalf of the Union.

Apparent authority results from a manifestation by the principal to a third party that creates a reasonable basis for the latter to believe the principal has authorized the alleged agent to perform the acts in question. Either the principal must intend to cause the third person to believe the agent is authorized to act for him, or the principal should realize that his conduct is likely to create such a belief. Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82, 83 (1988), citing Restatement (Second), of Agency § 27 (Comment a), 1958.

We find that the Employer has not shown that Cosgrove had apparent authority to make implicitly threatening statements concerning the secrecy of employees' ballots. See Pan-Oston Co., 336 NLRB 305, 306 (2001) (party who has burden to prove agency must establish agency relationship with regard to specific conduct that is alleged to be unlawful). The record reveals no manifestation by the Union to the employees that would lead them to reasonably believe that it had authorized Cosgrove to make such remarks.

Here there is no evidence that the Union held Cosgrove out as its spokesman or did anything at all to place him in a position of importance. As Zirpoli testified, the Union only authorized Cosgrove to solicit authorization cards.3 There is also no evidence that the Union condoned or was even aware of Cosgrove's statements to the employees. Indeed, Zirpoli effectively dis-avowed those statements by explaining to employees that

1 There is no contention that Cosgrove threatened any employee with physical violence or damage to personal property, and none of the employees sustained physical harm or property damage either during the campaign or after the election.

2 On March 13, 2002, the Board overruled Employer's Objection 1, which alleged that the Union misrepresented the Board's election processes by telling employees that the voting would not be done by secret ballot, and that the Union would know how they voted.

3 It is undisputed that Cosgrove did not make the threatening statements while he solicited authorization cards. Contrast, Davlan Engineering, 283 NLRB 803, 804 (1987) (employees who solicit authorization cards are special agents of the union for the limited purpose of assessing the impact of statements they make about union policies while soliciting).

no one would know how they voted because the election would be conducted by secret ballot.

Contrary to the Employer's contention, evidence that Cosgrove organized and spoke at the Union's campaign meetings, solicited authorization cards, and played a leading role in the campaign does not establish that he was a general agent of the Union. See United Builders Supply Co., 287 NLRB 1364, 1365 (1988) (holding that enthusiastic employee activist, who solicited and obtained signatures on authorization cards, organized and informed employees of union meetings, and served as election observer for union, was not general agent of union under the principles of actual or apparent authority where, inter alia, the union had its own admitted agent involved in the campaign). Such conduct merely reflected his status as a leading union supporter during the election campaign.4 Id. And even if he was the Union's most active and vocal supporter at the Employer's facility, he was not the Union's only conduit to the employees. Thus, Zirpoli's participation in the Union's campaign meetings, as well as his individual contact with employees during the election campaign made it clear to the employees that the Union had its own spokesman separate and apart from active and enthusiastic union adherents such as Cosgrove.5

4 See also L & A Juice Co., 323 NLRB 965 (1997) (employee's holding union meetings deemed inconclusive of agency status); Advance Products Corp., 304 NLRB 436 (1991) (employee who was member of in-house organizing committee, solicited support for union, distributed union literature, buttons, hats, and shirts, kept union informed of events occurring in plant, and served as election...

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