Culinary Foods, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1998

325 N.L.R.B. 664 (N.L.R.B. 1998)

664
325 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This union is the Intervenor here.
2 In the absence of exceptions, we adopt, pro forma, the hearing
officer’s recommendation to overrule the Intervenor’s Objection 2.
3 Member Brame joins his colleagues in finding that the Intervenor
has failed to meet its burden of showing that employee supporters
of the Petitioner acted as its agents here. But he finds it unnecessary
to pass on the Board’s decisions in Advance Products and United
Builders, where the Board found no agency relationship based on
much stronger facts supporting agency. In Advance Products, the al-
leged agent served as one of seven members of a formally des-
ignated in-house organizing committee whose responsibilities in-
cluded, inter alia, answering employees’ questions about the union.
In United Builders, inter alia, the alleged agent was a, if not the,
leading union supporter; was asked by the union’s representative to
set up meetings at which the union agent spoke; and arranged certain
other meetings, apparently independent of any union representative.
4 The figure of about 45 employees (which includes the union sup-
porters who purportedly made the statements as well as those who
heard them) is derived from the following testimony: employee
Jiminez heard the statement from Briseno and she then told this to
3 coworkers; employee Herrera was told the statement by Negrete
in the presence of Villanueva and Briseno and 6 other employees
and she told 3 other employees; employee Patino heard the statement
(from an employee she called Rosario Nunes, the Intervenor claims
this is alleged Petitioner Agent Rosario Negrete) and she told 4 em-
ployees; employee Rios heard the statement from Villanueva in a
group of 10 other employees; employee Maldonado heard the state-
ment, made in the presence of 5 other employees, from an employee
named ‘‘Chaio’’ (whom Maldonado said was on the organizing com-
mittee but who is not otherwise identified); Maldonado heard a simi-
lar statement in the presence of 3 other employees by an employee
named ‘‘Jaime’’ (whom Maldonado also claimed was on the orga-
nizing committee but who is not otherwise identified); and
Maldonado said an employee named ‘‘Maria’’ asked him whether
the INS would come to the plant if the Petitioner lost. We have not
considered employee Zavala’s statement that he heard organizing
committee members Villanueva, Briseno, and Negrete say that if the
Petitioner did not win the election ‘‘there were going to be prob-
lems’’ because the statement makes no reference to the INS and is
ambiguous.
Culinary Foods, Inc. and Production and Mainte-
nance Union, Local 101, an affiliate of Chicago
Truck Drivers Union (Independent), Petitioner
and Local 100-A United Food and Commercial
Workers International Union, AFL–CIO.1 Case
13–RC–19659
April 16, 1998
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS FOX, LIEBMAN, AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held July 11, 1997, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 464 for the Petitioner,
403 for the Intervenor, 31 against the participating
labor organizations, with 9 challenged ballots, an in-
sufficient number to affect the results, and 8 void bal-
lots.
The Board has reviewed the record in light of the
exceptions and briefs, has adopted as modified the
hearing officer’s findings and recommendations, and
finds that a certification of representative should be
issued.
In her report, the hearing officer recommended that
the Intervenor’s Objections 1 and 22 be overruled and
that the Petitioner be certified. Objection 1 alleged that
Petitioner’s agents had threatened voters that the Peti-
tioner would call the Immigration and Naturalization
Service (INS) into the plant if it did not win the elec-
tion. The hearing officer found that those making such
statements (employees Villanueva, Briseno, and
Negrete) were not agents of the Petitioner but employ-
ees who supported it and that the statements did not
warrant setting aside the election. We agree with the
hearing officer on both counts.
Contrary to the Intervenor’s contentions, the record
evidence does not establish that employee-members of
the self-organized employee committee that contacted
the Petitioner and assisted in the Petitioner’s subse-
quent organizing campaign were agents of the Peti-
tioner under the standard set in Advance Products
Corp., 304 NLRB 436 (1991); United Builders Supply
Co., 287 NLRB 1364 (1988).3
The Intervenor disputes the hearing officer’s deter-
mination that ‘‘no more than approximately 20 em-
ployees’’ heard about alleged threats made by em-
ployee supporters of the Petitioner that the Petitioner
would contact the INS if it lost the election. Based on
our review of the record, we conclude that the Interve-
nor’s best evidence of dissemination shows that at
most 45 employees in a unit of 1158 eligible voters
(less then 4 percent of the unit) heard about the state-
ments.4 Given the relatively limited dissemination of
these statements, we find that they did not create a
general atmosphere of fear and reprisal rendering a fair
election impossible. See Mike Yurosek & Sons, 225
NLRB 148 (1976), enfd. 597 F.2d 661 (9th Cir. 1979);
NLRB v. Eskimo Radiator, 688 F.2d 1315 (9th Cir.
1982). Cf. Q. B. Rebuilders, 312 NLRB 1141 (1993)
(overturning election where threats to call the INS on
employees who did not vote in favor of the union were
disseminated to at least one-third of the bargaining
unit, and one-third of the bargaining unit witnessed a
coworker’s actual detention and removal by the INS
from the employer’s facility the day before the elec-
tion).
In adopting the hearing officer’s recommendation
that the Intervenor’s Objection 1 be overruled, how-
ever, we do not rely on statements made by the hear-
ing officer, which refer to employees’ subjective reac-
tions to the alleged threats involving calling the INS
into the plant if the Petitioner lost the election. See
Picoma Industries, 296 NLRB 498, 499 (1989)
(‘‘[T]he subjective reactions of employees are irrele-
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665CULINARY FOODS, INC.
vant to the question of whether there was, in fact, ob-
jectionable conduct.’’).
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for Production and Maintenance Union,
Local 101, an affiliate of Chicago Truck Drivers Union
(Independent), and that it is the exclusive collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
All full time and regular part time production em-
ployees, including working supervisors employed
by the Employer at its facility currently located at
4201 S. Ashland Avenue, Chicago, Illinois 60609,
but excluding all office clerical employees, guards
and supervisors as defined in the Act, and all
other employees.
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