Southern Bag Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1994

315 N.L.R.B. 725 (N.L.R.B. 1994)

725
315 NLRB No. 111
SOUTHERN BAG CORP.
1 In the absence of exceptions, we adopt pro forma the hearing of-
ficer’s recommendation that we approve the Petitioner’s withdrawal
of Objection 1 and that we overrule Objections 2, 3, and 4.
2 The Employer contends that the hearing officer’s impartiality was
compromised because the hearing officer acted as the Board’s agent
at the election. In addition, the Employer excepts to the hearing offi-
cer’s conduct of the hearing. On careful examination of the hearing
officer’s report and the entire record, we are satisfied that these con-
tentions are without merit.
3 We find no merit in the Respondent’s allegation that this issue
was not raised at the hearing and that the Respondent was not af-
forded an opportunity to fully litigate the issue.
4 We find that Montgomery Ward & Co., 115 NLRB 645 (1956),
cited by the Respondent, is inapposite. In Montgomery Ward, supra,
the Board specifically found that a supervisor, who was included in
the voting unit, had no actual or apparent authority to act as the em-
ployer’s agent, and the Board held that, in the absence of such find-
ings, the employer was not liable for the supervisor’s actions.
Southern Bag Corporation, Ltd. and United Paper-
workers International Union, AFL–CIO, CLC,
Petitioner. Case 26–RC–7632 (formerly 15–RC–
7838)
December 14, 1994
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The National Labor Relations Board, by a three
member panel, has considered objections to an election
held on May 19, 1994, and the hearing officer’s report
(pertinent portions are attached as an appendix) rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 59 for and 72 against the
Petitioner with 1 challenged ballot, a number insuffi-
cient to affect the results.
The Board has reviewed the record in light of the
exceptions and brief, has adopted the hearing officer’s
findings and recommendations,1 and finds that the
election must be set aside and a new election held.2
We agree with the hearing officer that Leadman Bud
Guthrie had apparent authority to act as the Employ-
er’s agent during the meeting held with the sewing line
on the morning of the election and that Guthrie’s acts
at the meeting are therefore attributable to the Em-
ployer3 and violated the Board’s prohibition of captive
audience speeches within 24 hours of the election.
The Board applies common law principles when ex-
amining whether an employee is an agent of the em-
ployer. Apparent authority results from a manifestation
by the principal to a third party that creates a reason-
able basis for the latter to believe that the principal has
authorized the alleged agent to perform the acts in
question. See generally Great American Products, 312
NLRB 962 (1993); Dentech Corp., 294 NLRB 924
(1989); Service Employees Local 87 (West Bay), 291
NLRB 82 (1988). The test is whether, under all the
circumstances, the employees ‘‘would reasonably be-
lieve that the employee in question [the alleged agent]
was reflecting company policy and speaking and acting
for management.’’ (Citations omitted.) Waterbed
World, 286 NLRB 425, 426–427 (1987). As stated in
Section 2(13) of the Act, when making the agency de-
termination, ‘‘the question of whether the specific acts
performed were actually authorized or subsequently
ratified shall not be controlling.’’
In this case, one of Guthrie’s duties as a leadman is
to have meetings with employees in his department to
discuss subjects such as safety, housekeeping, quality
control, and similar production matters. The Employ-
er’s plant manager testified not only that the leadmen’s
responsibilities include conducting meetings on those
subjects, but that the leadmen do not have to obtain
permission prior to holding such meetings and that the
leadmen can stop or delay production in order to hold
them. When an employer has placed a leadman (or
other employee) in a position in which the employees
in his department look to him as an authoritative com-
municator of information on behalf of management re-
garding safety, housekeeping, quality control, and pro-
duction matters, it is clear that the employees would
tend to reasonably view the leadman as an agent of the
employer on other employment-related matters dis-
cussed in a similar context.
On the morning of the election, with the permission
of the plant superintendent, Guthrie delayed production
for 20 to 25 minutes to conduct a mandatory meeting
of the sewing line in the training room. Guthrie stated
at the beginning of the meeting that he had a legal
right to speak to the employees and proceeded to en-
courage the employees to vote against the Union. In
these circumstances, it is clear that the sewing line em-
ployees would reasonably believe that Guthrie was
conveying company policy (his antiunion message was
consistent with the messages presented by management
officials throughout the campaign) and that he was in-
deed acting for management the morning of the elec-
tion.4 We find that Guthrie acted as an agent of the
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employer at the meeting in question and that his state-
ments at that meeting were attributable to the Em-
ployer and constituted objectionable conduct within the
meaning of Peerless Plywood Co., 107 NLRB 427
(1953). Thus, we sustain the Petitioner’s Objection 5
and direct that a second election be held.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
HEARING OFFICER’S REPORT
However, the resolution of Objection 5 does not hinge
solely on the supervisory status of Guthrie. While the evi-
dence fails to establish superviory status, the credited testi-
mony clearly reveals that in his capacity of leadmam em-
ployees could reasonably believe that Guthrie spoke on be-
half of management. It is well established that an Employer
can be held liable for the acts and statement of non-
supervisory employees who act as its agents. The critical
issue is ‘‘whether, under all the circumstances, the employ-
ees would reasonably believe that the nonsupervisory em-
ployee was reflecting company policy and speaking and act-
ing for management.’’ Minnesota Boxed Meat, 282 NLRB
1208 (1987); Community Cash Stores, 238 NLRB 265
(1978); and Dentech Corp., 294 NLRB 924 (1989). As re-
flected in the Employer’s brief Guthrie served primarily as
a conduit of information between the sewing department
employees and the company supervisors. In that capacity
Guthrie conducted safety and production meetings with em-
ployees.
Further, the credible facts, undenied by the Employer, es-
tablish that on the morning of the election, Guthrie addressed
a group of sewing department employees. Guthrie was au-
thorized by Plant Superintendent Wells to hold the meeting.
Guthrie conveyed to the sewing department employees that
he had been given the legal right to hold the meeting. Pro-
duction was delayed for approximately 20–25 minutes while
Guthrie met with employees. This meeting took place in the
same room previously used by the Employer to address em-
ployees during its preelection campaign. During the May 19
meeting Guthrie echoed the sentiments of the Employer with
respect to unionization.
Based on the above facts, I find that Guthrie was the Re-
spondent’s agent during the meeting and his actions con-
stituted objectionable conduct within the meaning of Peerless
Plywood Co., 107 NLRB 427 (1953).
The Employer denied that Guthrie acted as its agent during
the meeting at issue. Furthermore, the Employer denied any
knowledge of the union sentiment of Guthrie or the nature
of the meeting. Hence, it argues, that it is not liable for
Guthrie’s actions. I find the Employer’s arguments to be
unpersuasive. First of all, throughout the hearing as well as
in its brief, the Employer was able to identify not only
leadmen, who supported the union, but other employees as
well. Just as the Employer was aware of leadmen who sup-
ported the union, I am convinced it was equally aware of
those who opposed it. Further, I find incredible the Employ-
er’s testimony that it had no knowledge of the nature of
Guthrie’s meeting. While Wells testified it was not uncom-
mon for leadmen to hold meetings, it was clear from his tes-
timony that any such meeting was always work-related and
required no permission by management. Further, these meet-
ings were generally short in duration and often held in the
production area and there was nothing in the record to indi-
cate that any such meeting had previously been brought to
the attention of the plant manager. Wells testified that meet-
ings which were not work-related were not permitted. This
was in direct conflict to the testimony of Plant Manager
Rusche. Rusche testified that during the course of the
preelection campaign, prounion leadmen could have halted
production and held meetings with employees advocating
support for the Union. I completely discredit this testimony
of Rusche, as being totally unworthy of belief, especially in
light of the Employer’s antiunion position and Wells’ testi-
mony. I also find it interesting that Rusche testified that the
day after the election, Wells approached him and told him
that Guthrie had met with the sewing department employees.
If such a meeting was not an unusual occurrence, I find it
odd that Wells would bring this meeting to the attention of
the plant manager.
While the Employer implied that prounion leadmen had in
fact held meetings with employees, there was no evidence in
support thereof. In fact, Flaienhean denied any such action.
No witness was called by the Employer to refute
Flaienhean’s testimony in that regard. Thus, I find that the
meeting held by Guthrie was the first and only such meeting
allowed. Even assuming the Employer had no knowledge of
the nature of Guthrie’s meeting Section 2(13) of the Act pro-
vides as follows:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
In the final analysis, I find that Guthrie’s action of taking
employees away from their working area and subjecting
them to antiunion messages in the privacy of a company of-
fice, afforded the Employer an unfair advantage to affect the
outcome of the election. The conduct is incompatible with
the free and untrammeled choice the election is designed to
reflect. Accordingly, I recommend that Petitioner’s Objection
5 be sustained and the election be set aside.