Corner Furniture Discount Center, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1122 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
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 bal-
lots.
The Board has reviewed the record in light of the Em-
ployer’s exceptions and brief, has adopted the judge’s
findings and recommendations as explained below, and
finds that a certification of representative should be is-
sued.
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. Accord-
ing 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 objec-
tion, 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 Un-
ion’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 gen-
eral atmosphere of fear and reprisal rendering a free elec-
tion 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 Mainte-
nance), 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 em-
ployees’ 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 con-
duct 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 author-
ized 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 testi-
fied, the Union only authorized Cosgrove to solicit au-
thorization cards.3 There is also no evidence that the
Union condoned or was even aware of Cosgrove’s state-
ments 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 proc-
esses 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 state-
ments while he solicited authorization cards. Contrast, Davlan Engi-
neering, 283 NLRB 803, 804 (1987) (employees who solicit authoriza-
tion cards are special agents of the union for the limited purpose of
assessing the impact of statements they make about union policies
while soliciting).
339 NLRB No. 146
CORNER FURNITURE DISCOUNT CENTER, INC. 1123
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 ob-
tained 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 re-
flected 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 facil-
ity, he was not the Union’s only conduit to the employ-
ees. Thus, Zirpoli’s participation in the Union’s cam-
paign 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); Ad-
vance 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 in-
formed of events occurring in plant, and served as election observer for
union, not general agent of union); S. Lichtenberg & Co., 296 NLRB
1302, fn. 4 (1989) (no agency status existed where a group of self-
designated individual employees became a “somewhat transitory,
amorphous group,” adjunct to a professional union staff that personally
and actively directed the union’s election campaign); Cambridge Wire
Cloth Co., 256 NLRB 1135, 1139 (1981), enfd. 679 F.2d 885 (4th Cir.
1982) (card solicitation insufficient to show agency status); Tennessee
Plastics, Inc., 215 NLRB 315, 319 (1974), enfd. 525 F.2d 670 (6th Cir.
1975) (union’s most ardent employee advocate during organizational
campaign found not to be union agent, where she was not the union’s
principal contact with voters and where union was represented on the
spot by a full staff of agents led by an international union organizer
who personally directed the campaign). Member Acosta agrees that the
evidence does not establish that Cosgrove was an agent of the Union
and, in so concluding, he relies heavily on union representative Zir-
poli’s presence and participation in the Union’s campaign. See Ever-
green Healthcare, Inc. v. NLRB, 104 F.3d 867 (6th Cir. 1997). Accord-
ingly, he finds it unnecessary to rely on the all the cases cited in the
footnote.
5 NLRB v. Kentucky Tennessee Clay Co., 295 F.3d 436 (4th Cir.
2002), a case relied on by the Employer, wherein the court found two
employees to be union agents, is inapposite. The court explained that
its final inquiry in determining whether a person is acting as an agent
for the union “‘is always whether the amount of association between
the union and the [employee] is significant enough to justify charging
the union with the conduct.’” Id. at 442, quoting PPG Industries v.
NLRB, 671 F.2d 817, 822 fn. 8 (4th Cir. 1982). In finding the union
Accordingly, because we find that the Employer has
failed to meet its burden of showing that Cosgrove had
apparent authority to threaten employees on the Union’s
behalf, we find that his remarks are not attributable to the
Union, and that the judge properly assessed them under
the Board’s standards for third-party conduct.
As the judge stated, 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. West-
wood Horizons Hotel, 270 NLRB 802, 803 (1984); Cal-
West Periodicals, Inc., 330 NLRB 599, 600 (2000). The
burden of proof lies with the objecting party. Cal-West
Periodicals, supra at 600. The Board and the courts rec-
ognize that conduct by third parties is less likely to affect
the outcome of the election, and that because unions (and
employers) cannot control nonagents, the equities mili-
tate against setting aside elections on the basis of conduct
by third parties. This is true even where, as here, a shift
in one vote could have changed the outcome of the elec-
tion. Id.
Applying that standard to the evidence in this case, we
conclude that the Employer failed to prove that the con-
duct at issue was objectionable conduct warranting the
setting aside of the election. In doing so, we do not rely
on the employees’ testimony that they felt insecure or
unsure whether their votes would actually be confiden-
tial. It is well established that “‘the subjective reactions
of employees are irrelevant to the question of whether
there was, in fact, objectionable conduct.’” Picoma In-
dustries, Inc., 296 NLRB 498, 499 (1989), quoting
Beaird-Poulan Division, 247 NLRB 1365, 1370 (1980),
enfd. 649 F.2d 589 (8th Cir. 1981). “Rather, the test is
based on an objective standard.” Id. See also Teamsters
Local 299 (Overnite Transportation Co.), 328 NLRB
1231 fn. 2 (1999).

chargeable with the employees’ threatening conduct, the court relied on
several factors including that: the employees were instrumental in every
step of the campaign process from obtaining authorization cards, to
distributing union literature, to speaking with employees in the work-
place, to calling them at home, often at the direct request of the union
organizer; the employees were the union’s only conduits of informa-
tion; the union relied almost exclusively on the employees to effectuate
its organizational campaign; and the union organizer did not obtain a
single authorization card, distribute union literature, attempt to visit the
facility or speak with employees beyond those present at three organ-
izational meetings. Id. at 443. In contrast, here the evidence of appar-
ent agency is tenuous at best. As discussed above, Zirpoli only author-
ized Cosgrove to solicit authorization cards, and unlike the union or-
ganizer in Kentucky Tennessee Clay, Zirpoli had contact with employ-
ees beyond those present at the Union’s campaign meetings. Cf. NLRB
v. Herbert Halperin Distributing Corp., 826 F.2d 287, 291 (4th Cir.
1987) (finding that employees were not apparent agents of the union
where professional union staff was heavily involved in the organizing
campaign).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124
We agree with the judge that the employees could not
reasonably have taken Cosgrove’s threats seriously in
light of the numerous assurances they received.6 Here
employees were told in definite terms by the Employer
as well as the Union that how they voted would be kept
confidential. Thus, the Employer distributed a letter that
clearly stated that employees would vote by “SECRET
BALLOT,” and that no one would know how they voted.
Sales Manager Frank Cosme also personally assured
Santos and Ainsley that their votes would remain confi-
dential. Zirpoli also offered similar assurances to em-
ployees at campaign meetings held by the Union prior to
the election.7 Finally, although this fact is not necessary
to our decision, three days prior to the election, the Em-
ployer was required to post the Board’s notice of elec-
tion, which incorporates a sample ballot with words,
“OFFICIAL SECRET BALLOT.” See NLRB Casehan-
dling Manual (Part Two) Representation, Section 11314
and form NLRB-707. The Employer presumably com-
plied with this requirement, given the lack of any objec-
tion for failure to comply.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Local 531, International Brotherhood of
Teamsters, AFL–CIO, and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate Unit:
All full-time and regular part-time sales representatives
employed by the Employer at its facility located at
2916 White Plains Road, Bronx, New York, New
York, but excluding all other employees, including
sales managers, clerical employees, warehouse em-
ployees, information technology employees, and
guards, professional employees, and supervisors as de-
fined in the Act.

6 The silent treatment the employees allegedly received from their
prounion coworkers because of their perceived opposition to the Union
during the course of the campaign is not objectionable. United Build-
ers, supra, 287 NLRB at 1370. The Board and courts recognize that in
a hotly contested election “a certain measure of bad feeling and even
hostile behavior is probably inevitable.” Cal-West Periodicals, supra,
330 NLRB at 600, citing Nabisco, Inc. v. NLRB, 738 F.2d 955, 957 (8th
Cir. 1984).
7 Associated Rubber Co. v. NLRB, 296 F.3d 1055 (11th Cir. 2002),
relied on by the Employer, is inapposite. In Associated Rubber, a union
supporter, found not to be the union’s agent, actually carried through on
his verbal threat to make a union opponent “pay” for refusing to accept
union material by making the opponent’s working conditions harder for
several hours a few days before the election, and arguably exposing
him to risk of physical harm. Id. at 1060–1064. Unlike here, neither
the union nor the employer repudiated the union supporter’s conduct
prior to the election.
MEMBER SCHAUMBER, concurring.
This is a close case but on balance I join with my col-
leagues in overruling the Employer’s objection and in
their determination that employee Terry Cosgrove was
not an agent of the Union with respect to the alleged ob-
jectionable conduct. I write separately because I reach
the same conclusion using a somewhat different path.
Also, I part company with the majority’s characterization
of some Board precedent and its applicability here al-
though I do not comment on all aspects of the majority’s
opinion with which I disagree.
By way of significant example, in determining whether
the Employer met its burden of proving Cosgrove had
apparent authority as the Union’s agent when he made
allegedly objectionable statements, the majority indicates
there must be a basis to believe the Union authorized
Cosgrove to perform the specific acts in question. How-
ever, it is well established that “a principal is responsible
for its agent’s conduct if such action is within the general
scope of authority attributed to the agent, even if the
principal did not authorize the particular act. In other
words, it is enough if the principal empowered the agent
to represent the principal within the general area in which
the agent has acted.”1
In this regard, the nature of the inquiry into whether an
employee is an agent of one party or another will be dif-
ferent if the employee is a supervisor. This is so because
a supervisor is necessarily an agent of the supervisor’s
employer for at least some purposes. Consequently, the
inquiry into whether certain conduct of a supervisor can
be attributed to the employer has a different starting
point and a different focus than, for example, the inquiry
into whether certain conduct of a prounion employee
during an organizational campaign can be attributed to
the union.
I further note my disagreement with the majority over
the implication in their decision that an employee who,
like Cosgrove, organized and spoke at union campaign
meetings, solicited authorization cards, and played a
leading role in the campaign, could not, without more, be
the apparent agent of the union for all statements and
activities related to the campaign. I would find Cosgrove
an agent clothed with apparent authority when he made
the statements at issue were it not for the countervailing
evidence, notably the active campaign role of the Un-
ion’s paid agent Zirpoli and the statements made by Zir-
poli which were inconsistent with the veiled threats being
made by Cosgrove, all of which I believe warrant a find-
1 Bio-Medical Applications of Puerto Rico, Inc., 269 NLRB 827, 828
(1984).
CORNER FURNITURE DISCOUNT CENTER, INC. 1125
ing that the Employer failed to prove Cosgrove’s agency
by a preponderance of the evidence.
Finally, I agree that Cosgrove’s statements casting
doubt on the secrecy of employees’ votes were not objec-
tionable under the third-party conduct standard because
those statements were clearly contradicted by the Union,
by the Employer, and by the Board’s election notice, but
also because they appear to have been largely ineffective.
Each of the three employees who testified that Cosgrove
told them that “they” would find out how the employees
voted, or words to that effect, voted in the election and
none of them testified that his statement affected the bal-
lot they cast. One of the three employees, Brunning,
testified variously that he was “a little anxious,” “a little
wary,” or “scared” by Cosgrove’s statement, but he as-
sured coworkers not to worry about it. He also admitted
he was not retaliated against for voting the way he did,
thus conceding that Cosgrove’s statement did not affect
his vote. Another employee, Ainsley, described his reac-
tion to the threat in mild terms, one of “concern.” The
third employee, Santos, testified that Cosgrove told her a
few days before the election that “they” would know
how she voted. However, Manager Frank Cosme told
her that her vote would be secret. Santos said she be-
lieved Cosme but felt “insecure” that others would find
out.2

2 Relying on extant Board law that “the subjective reactions of em-
ployees are irrelevant to the question of whether there was, in fact,
objectionable conduct” (citations omitted), my colleagues do not rely
The above testimony coupled with the statements
made by the Union, the Employer and set forth in the
Board’s notice with regard to the secrecy of the election
support the conclusion that Cosgrove’s statements in the
end did not effect the election outcome. I note, however,
that in an election decided by a single vote, proof of
threatening statements to even one determinative voter
can be the basis for setting aside the election. See, e.g.,
Smithers Tire, 308 NLRB 72 (1992) (employee threats to
flatten the tires of employee Barfield if she voted against
the union coupled with statements that others would
know how she voted). However, for the reasons set forth
above, I fail to find a similar rationale applicable for set-
ting aside the election in this case.

on the testimony of the employee witnesses that “they felt insecure or
unsure whether their votes would actually be confidential.” In concur-
ring, however, I have given some weight to the subjective reaction of
the employees and respectfully suggest that Board law in this area
should be revisited. We all agree that a reasonable person standard
should apply in cases of this nature and we recognize the potential for
mischief after an election is over and the results are in. Nevertheless, I
do not subscribe to the view that an employee’s subjective reaction is
irrelevant. Such a rule replaces what may have been the actual, albeit
subjective, reaction of the employee who was the target of the chal-
lenged conduct with the Board’s subjective view of what a reasonable
person’s reaction should be. I find no warrant for such a one-sided
rigid rule; indeed, it smacks of a certain degree of hubris. In my view,
while the subjective reaction of the employee should not necessarily be
determinative, it should be considered as a factor in judging the objec-
tionable nature of the challenged conduct.