United Builders Supply Co., Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1988

287 N.L.R.B. 1364 (N.L.R.B. 1988)

1364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Builders Supply Co., Inc . and Local 379, Ex-
cavating & Building Material Local Union, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America , AFL-CIO,' Petitioner . Case 1-
RC-18023
29 February 1988
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN, BABSON, AND CRACRAFT
The National Labor Relations Board has consid-
ered objections to an election held 10 April 1984
and the hearing officer's report recommending dis-
position of them. The election was conducted pur-
suant to a stipulated election agreement. The tally
of ballots shows 10 for and 6 against the Petitioner,
with 3 challenged ballots, an insufficient number to
affect the result.
The Board has reviewed the record in light of
the exceptions and brief, has adopted the Regional
Director's findings2 and recommendations,3 and
finds that a certification of representative should be
issued.
In adopting the hearing officer's finding that em-
ployee Ray Wentworth was not a union agent, we
emphasize that the present case is factually distin-
guishable from Bio-Medical Applications, 269 NLRB
827 (1984), and Bristol Textile Co., 277 NLRB 1637
(1986), in which the Board found union agency.4
In this regard, we stress that in Bio-Medical the em-
ployees found to be agents engaged in the follow-
ing activities: (1) they traveled with union officials
to a plant in the voting unit other than the one
where they worked and introduced themselves, in
the presence of those officials, to the employees at
the plant as the Petitioner's representatives; (2) one
' On I November 1987 the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 The Employer has excepted to some of the hearing officer's credibil-
ity 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 1361 (1957). We have carefully examined the record and find
no basis for reversing the findings
We note that although the hearing officer stated in his report that em-
ployee activist Ray Wentworth asked Paul Walsh , the Petitioner 's busi-
ness agent , to come to the three or four union meetings that Walsh at-
tended , the record clearly reveals that Walsh asked Wentworth to set up
these meetings We find, however, that the hearing officer's misstatement
is insufficient to affect our agreement with the ultimate conclusions.
2 In the absence of exceptions , we adopt , pro forma, the hearing offi-
cer's recommendation that the Employer 's Objection 2 be overruled
* Although the Employer argues in its exceptions that employees Le-
vasseur and Spicer were also agents of the Petitioner , we note that the
Employer expressly stated at the hearing that it was not contending em-
ployees Levasseur and Spicer were agents Furthermore , we conclude
that there is insufficient evidence here, in any event, to warrant such a
finding on the merits.
spoke to a fellow employee, allegedly as a Petition-
er representative, about union dues and fees; (3)
they asked questions on the employees' behalf at a
campaign meeting that the Employer held; (4) they
accompanied union officials to the representation
proceedings held before the Board; (5) one attend-
ed the preelection conference; (6) one remained in
a designated no-electioneering area throughout the
balloting pursuant to the Petitioner's instructions;
and (7) one attended the postelection ballot count
with Petitioner officials. The Board found there
that the above evidence, when considered in toto,
demonstrated that the two employee activists were
union agents within the meaning of Section 2(13)
of the Act. In Bristol Textile, the Board found an
employee to be an agent of the union because he
was, effectively, the union's presence in the plant.
The evidence showed that the purported agent was
the Petitioner's only link to the unit employees,
that he made weekly reports to the Petitioner
about the campaign, that he relayed employees'
questions to the Petitioner, and that the Petitioner's
representative identified the alleged agent as "my
contact" and testified that "he was the only one I
really talked to." The Board concluded in Bristol
Textile that the employee was a union agent be-
cause he served as the union's "conduit" to the unit
employees who, based on the alleged agent's own
testimony, perceived him as the Petitioner's agent.
Although it is evident in this case that Wentworth
was a vocal and active union supporter during the
election campaign, we conclude that the totality of
Wentworth's conduct here on behalf of the Peti-
tioner is not as substantial in degree or kind as that
of the employees found to be agents in Bio-Medical
Applications and Bristol Textile.5
Furthermore, contrary to our dissenting col-
league, we do not find that employee Wentworth
was a general agent of the Petitioner under the
principles of apparent authority. As set out in Re-
statement 2d, Agency § 8(a) (1958), "[a]pparent au-
thority results from a manifestation by a person
that another is his agent , the manifestation being
made to a third person and not, as when authority
S Our dissenting colleague points out that in Bio-Medical Applications,
269 NLRB 828 (1984), the Board cited Teamsters Local 886 (Lee Way
Motor Freight), 229 NLRB 832 (1971), enfd . 589 F . 2d 1116 (D.C Cir.
1978), as support for its finding there that the employee advocate was a
union agent . We note, however, that Lee Way Motor Freight is clearly
distinguishable both from Bio-Medical Applications and the instant case in-
asmuch as the alleged agent in Lee Way Motor Freight was a union stew-
ard and found to be acting within his authority as such
Member Cracraft did not participate in the decision in Bristol Textile.
While she agrees with the finding herein that employee Wentworth was
not Petitioner's agent and with the factors set out in the decision which
distinguish the instant case from the situation in Bristol Textile, she does
not pass on whether she would have found Pirollo to be an agent of the
union in Bristol Textile
287 NLRB No. 150
UNITED BUILDERS SUPPLY CO 1365
is created, to the agent." In this light, our dissent-
ing colleague makes no attempt to differentiate
those actions of Wentworth that were actually or
apparently authorized, either expressly or by impli-
cation, from those that might have resulted merely
from Wentworth's own enthusiasm for the Petition-
er's cause and his penchant for self-promotion
In this case, the record shows only that Walsh
gave Wentworth actual authority to solicit and col-
lect authorization cards on Petitioner's behalf.6 Ad-
ditionally, Walsh asked Wentworth, among other
employees, to set up some union meetings and
asked Wentworth to inform employees of union
meetings. Finally, Petitioner selected Wentworth to
be its election observer. Although this is arguably
evidence establishing limited actual or apparent au-
thority, it is not a "manifestation" to employees
broad enough to render Wentworth a general
agent.
With regard to a possible implied "manifesta-
tion" of authority, it is clear that Wentworth was a
leading, if not the leading, union supporter and his
actions reflected that status. The Board has never
held, however, that such status alone is sufficient to
establish general union agency Moreover, while
Walsh must have known of some of Wentworth's
actions, it is simply not established in the record to
what degree Walsh was aware of those actions of
Wentworth that were not expressly authorized,
thus eliminating the possibility of finding that
Walsh implicitly created apparent authorization of
other conduct by ratification. Finally, we note that
the Petitioner did not abdicate its role in the cam-
paign here and, through Walsh's conduct of union
meetings, and other activity, it was clear to employ-
ees that the Petitioner had its own spokesman sepa-
rate and apart from union activists such as Went-
worth.
In light of the foregoing and for all the reasons
stated in the hearing officer's report, we agree with
the hearing officer that the facts of this case are in-
sufficient to'support a conclusion that Wentworth
was an agent of the Union ' See generally NLRB
B It is undisputed that the conduct Wentworth engaged in which our
colleague finds objectionable was removed in time from Wentworth's
card solicitation activities Thus, the present case is distinguishable from
Davian Engineering , 283 NLRB 803 (1987), in which we held that em-
ployee-solicitors were special agents of the union for the limited purpose
of card solicitation
7 Regarding the Employer's assertion that a finding of agency status is
warranted with respect to employee Wentworth in light of evidence that
he was instrumental in arranging a settlement of unfair labor practise
charges the Union had filed concerning the layoffs of Wentworth and
three other employees, we note that at one point during these negotia-
tions Wentworth offered to withdraw the instant representation petition
in an attempt to resolve the dispute Based on this evidence, contrary to
the Employer ' s assertion , we conclude that Wentworth's conduct regard-
ing the charges demonstrates that he was acting in his own and the other
laid-off employees' interest rather than as a union agent
- v. Herbert Halperin Distributing Corp., 826 F.2d 287
(4th Cir. 1987) Accordingly, we adopt the hearing
officer's recommendation that the Employer's Ob-
jection 1 be overruled 8
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for Local 379, Excavating &
Building Material Local Union, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
AFL-CIO, and that it is the exclusive collective-
bargaining representative of the employees in the
following appropriate unit:
All truck drivers, yardmen and mechanics em-
ployed by the Employer at its Waverly Street,
Framingham, Massachusetts location, but ex-
cluding all other employees such as all office
clerical employees, guards and supervisors as
defined in the Act.
MEMBER JOHANSEN, dissenting.
Contrary to my colleagues and the hearing offi-
cer, I find that employee Raymond Wentworth
was an agent of the Petitioner and that his state-
ments to employee Michael Lowney constituted
objectionable conduct warranting a new election.
In September 1983 employee Raymond Went-
worth contacted Paul Walsh, the Petitioner's busi-
ness agent, in an effort to organize the Employer's
facility, and was given instructions on how to go
about it Wentworth received authorization cards
from Walsh to distribute to employees and did so
Wentworth also gave cards to other employees so
they could solicit signatures. Wentworth collected
the cards from the other solicitors and forwarded
them to Walsh.
During the 7-month campaign, Wentworth ar-
ranged 18 to 25 meetings at a local bar to discuss
the union and the upcoming election. Wentworth
invited and urged virtually every employee to
attend these meetings, which were held after work,
sometimes with the offer, "drinks are on me."
Some of these were impromptu employee meetings
There is some evidence that other employees called
some of the impromptu meetings, that other em-
ployees besides Wentworth invited employees to
these meetings, and that other employees bought
refreshments at these meetings. In addition to these
impromptu meetings, Walsh asked Wentworth and
two other employees to set up three or four of
these meetings, and Walsh attended and spoke at
8 The pertinent portion of the hearing officer's report is attached as an
appendix
1366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these meetings.' One of these meetings requested
by Walsh was held approximately I week before
the 10 April 1984 election, and Walsh informed
employees about this meeting by sending them a
letter.
During the course of the election campaign
Wentworth was active and vocal, making numer-
ous phone calls to employees to discuss the upcom-
ing election with them and sway their votes. Went-
worth boasted to the Employer's general manager,
Alan Walis, that if the organization drive was suc-
cessful, Wentworth would be made steward, and
he also told Walis that he would take care of any
problems created by prounion employees. In late
February, Wentworth informed Walsh that the
Employer had recently "bought" the vote of a
newly hired part-time employee, and Walsh subse-
quently investigated the matter. During the months
preceding the election, Wentworth negotiated the
settlement terms of unfair labor practice charges
filed by the Petitioner against the Employer, and
this settlement agreement was subsequently execut-
ed by the Employer and the Petitioner. During the
course of these negotiations, Wentworth offered to
withdraw the representation petition if the Em-
ployer would agree to pay employees $1 less than
union scale.2
Recognizing that union activism is an insufficient
basis on which to find agency status, the hearing
officer found that there was no evidence that
Wentworth was ever promised by or received from
the Petitioner any pecuniary or other benefits. The
hearing officer further found, relying on A TR Wire
& Cable Co.,3 that there was no evidence that
Walsh did anything at all to place Wentworth in a
position of importance or to clothe him with actual
or apparent authority and credited Walsh's testimo-
ny that he did not do so. The hearing officer also
concluded that there was no evidence that Walsh
condoned or was even aware of Wentworth's state-
ments . Additionally, the hearing officer found that
employees could not have reasonably believed
Wentworth to be the Petitioner's agent as Walsh
made his presence known to employees at three or
four union meetings , communicated to employees
by letters, and because the Petitioner had a few
years earlier engaged in a previous unsuccessful
i In his report the hearing officer inadvertently stated that Wentworth
asked Walsh to come to three or four of these meetings. However, the
record clearly reveals that Walsh asked Wentworth to set up three or
four union meetings
a In September 1983 the Petitioner filed unfair labor practices charges
alleging, inter alia, that Wentworth and other employees were unlawfully
laid off, discharged , or suffered a reduction in hours because they en-
gaged in protected activities and in December 1983 a consolidated com-
plaint was issued by the Regional Director . About 24 February 1984 the
settlement agreement was executed by the Employer and the Petitioner.
a 267 NLRB 204 (1983).
election campaign at the Employer's facility and
other employees, aside from Wentworth, had
played a prominent role in the previous campaign.4
Although Wentworth was the Petitioner's observer
at the election, the hearing officer found that
Wentworth's duties were limited to those usually
associated with an election observer. The hearing
officer concluded, relying on Bujkor-Pelzer Divi-
sion,5 that Wentworth's statements to Walis that he
would handle any problems created by prounion
employees and would become union steward did
not establish that Wentworth was an agent of the
Petitioner. He also found that the Petitioner's sub-
sequent execution of the settlement agreement ne-
gotiated by Wentworth and the Employer did not
evidence Wentworth's agency status, as Went-
worth was negotiating on the behalf of himself and
other employees. Finally, the hearing officer con-
cluded that as Wentworth, during the settlement
negotiations, offered to secure the withdrawal of
the representation petition, thereby undermining
the Petitioner's efforts, he clearly was not an agent
of the Petitioner.
While I recognize that union activism is, in itself,
an insufficient basis on which to find agency status,
contrary to the hearing officer, I find that there is
ample evidence that Wentworth had apparent au-
thority to act as the Petitioner 's agent . Section
2(13) of the Act provides 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 per-
formed were actually authorized or subse-
quently ratified shall not be controlling.
Rather, as the Board stated in 1948 in Longshore-
men ILA Local 6 (Sunset Line & Twine C0.)6 and
restated in Bio-Medical Applications,' responsibility
attaches to the principal if, applying the ordinary
law of agency, it is shown that the individual was
acting in the capacity of the principal's agent. As
the Board said in Bio-Medical:
[T]he determinative factor in establishing
agency status is not authorization or ratifica-
tion of the agent's acts by the principal, but
rather the nature of the agency. A principal is
responsible for its agent's conduct if such
action is done in furtherance of the principal's
4 The hearing officer noted that Wentworth was not employed by the
Employer at that time
S 169 NLRB 998 ( 1968).
a 79 NLRB 1487 , 1509 (1948).
r 269 NLRB 827, 828 ( 1984), citing Teamsters Local 886 (Lee Way
Motor Freight), 229 NLRB 832 (1977), enfd 589 F 2d 1116 (D C. Cir.
1978)
UNITED BUILDERS SUPPLY CO 1367
interest and is within the general scope of au-
thority 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 princi-
pal within the general area in which the agent
has acted.8
The evidence, here, when considered in toto,
demonstrates that Wentworth was the Petitioner's
agent. Wentworth made the initial contact with the
Petitioner that led to the organizing drive at the
Employer's facility, and he received authorization
cards from Walsh with instructions on organizing.
He solicited signatures and also gave the cards to
other employees to solicit signatures, and then col-
lected all the cards and forwarded them to Walsh.
During the 7-month campaign period, Walsh held
only three to four union meetings and requested
that Wentworth, among other employees, organize
those meetings. Except for sending a letter to em-
ployees informing them of the final union meeting,
Walsh relied on Wentworth to inform employees
of those meetings. Aside from 3 to 4 union meet-
ings called by Walsh, Wentworth held an addition-
al 14 to 21 union meetings at a local bar to discuss
union matters, and made numerous phone calls to
employees in order to find out their positions and
to sway their votes. Wentworth also acted as a
conduit of information for the Petitioner by inform-
ing it that the Employer had "bought" the vote of
a newly hired employee.9 Additionally, Walsh se-
lected Wentworth to be the Petitioner's observer at
the election.10 Finally, several employees testified,
and the record clearly supports, a finding that
Wentworth was the principal leader of the organiz-
ing drive at the Employer's facility.' 1 Under these
circumstances, the Petitioner did not disassociate
itself from nor repudiate Wentworth's exercise of
8 Id citing Hampton Merchants Assn, 151 NLRB 1307, 1308 (1965),
Electrical Workers 1UE Local 914, 106 NLRB 1372, 1379 (1953), Restate-
ment 2d , Agency § 12 comment a and § 49 comments b and c ( 1958) See
Sunset Line & Twine Co, supra
9 NLRB v Urban Telephone Corp, 499 F 2d 239 (7th Cir 1974), deny-
ing enf 199 NLRB 1035 (1972) 1 do not rely on this factor
10 Contrary to the Employer, I do not find support for finding Went-
worth to be an agent of the Petitioner in Wentworth 's role in securing a
settlement agreement with the Employer
i i Although , as is noted above , other employees besides Wentworth
organized meetings and solicited signatures on authorization cards, it is
clear from the record that none of these employees played the prominent
role that Wentworth did in the election campaign
12 Bm-Medical, supra The Union could have avoided responsibility for
Wentworth 's conduct by making a clear delineation to employees of who
had authority to speak on behalf of the Union Such a delineation would
ensure that employees would not be misled by those not so authorized
and would thereby avoid any confusion among the employees , as well as
avoid the time, money, and Board resources attendant to litigating objec-
tions and holding rerun elections See Davlan Engineering , 283 NLRB 803
(1987)
apparent authority.12 I therefore would reverse the
hearing officer's finding on this issue 13
In view of my finding that Wentworth was an
agent of the Petitioner, I also disagree with the
hearing officer's finding that certain threats made
by him to employee Michael Lowney were not ob-
jectionable. According to Lowney's credited testi-
mony, in February 1984, while Lowney was at
work, Wentworth asked him which way he was
going to vote, and Lowney responded that he did
not know. Wentworth then told Lowney that if the
latter voted the same way he did in the 1981 repre-
sentation election, he would have some problems.
Perhaps 3 or 4 weeks later, Wentworth told
Lowney that if the latter had a grievance the
Union would not bring it up to the Employer, and
if the Employer had a grievance against Lowney,
the Union would help the Employer to somehow
fire Lowney. Moreover, Wentworth told Lowney
that if the Union found out that Lowney had done
something that the Employer did not know about,
the Petitioner would inform the Employer about it
and try to help them to fire Lowney.
Applying the standard for third-party conduct,
the hearing officer found that the alleged objec-
tionable conduct engaged in by prounion employ-
ees, including Wentworth's above statements, did
not create such a widespread atmosphere of fear
and coercion so as to warrant setting aside the
election. Additionally, the hearing officer specifi-
cally concluded that Wentworth's statements to
Lowney concerning the manner in which the Peti-
tioner would handle Lowney's grievances were di-
rected to events that reasonably Wentworth would
not be capable of carrying out.
As I have found, however, that Wentworth was
an agent of the Petitioner, the proper test to be ap-
plied is not whether Wentworth's threats created a
15 My colleagues ' attempt to distinguish Bm-Medical and Bristol Textile
is singularly unpersuasive While I recognize that the result reached in
any case involving the issue of union agency depends on the facts of that
case, Wentworth 's conduct in the present case does not differ "in degree
or kind" from that involved in Bio-Medical or Bristol Textile, despite my
colleagues ' assertion to the contrary Wentworth , like the employees in-
volved in those cases, was the instrumental link between the Petitioner
and the employees , and both the Petitioner and the employees recognized
the importance of his role Under these circumstances, no valid distinc-
tion can be drawn between the present case and Bio-Medical and Bristol
Textile, and I would reach the same result here as did the Board in those
cases
I also find the cases relied on by the hearing officer inapposite to the
facts of the instant proceeding In ATR Wire & Cable Co, supra, the
judge found that the union representative credibly testified that he specif-
ically told those employees active in the campaign that only the union
representative spoke for the union , whereas in the instant case , as is re-
vealed by the record, representative Walsh placed no such limitations on
Wentworth's role with respect to speaking to other employees In
BuJkor-Pelzer Division , supra, the Board held that an employee 's assertion
that she was a union agent, standing alone , was insufficient to establish
agency status , whereas here, as noted above , our finding of agency status
is based on numerous other factors as well
1368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
widespread atmosphere of fear and coercion, but
whether they reasonably tended to interfere with
the employees' free and uncoerced choice in the
election.14 In the instant case, Wentworth threat-
ened Lowney that if the latter did not support the
Union, and the Union won the election, it would
not bring Lowney's grievances before the Employ-
er, and would help the Employer to somehow fire
Lowney. The Board has previously found similar
statements by union agents in an election context to
be objectionable. Thus, in Knapp-Sherrill Co., 15 the
Board found objectionable statements by union
agents to employees that the union would represent
members and those who voted for the union differ-
ently from nonmembers. Similarly, in Rozier Ma-
chinery Co.,16 the Board found statements by a
union agent that it would bargain harder for mem-
bers than other employees warranted setting aside
the election. In view of my finding that Wentworth
was an agent of the Petitioner, the same result is
required here.17
Accordingly, I dissent.
14 Baba 's Place, 268 NLRB 868 ( 1984).
15 171 NLRB 1547 , 1548 (1968)
16 174 NLRB 1170 , 1171 (1969).
17 I note Lowney 's undisputed testimony that he told one other em-
ployee about the statements Wentworth made to him
The hearing officer , in finding Wentworth's statements to Lowney un-
objectionable , additionally relied on the fact that shortly before the elec-
tion Lowney had shaken hands with Wentworth and indicated he sup-
ported the Petitioner , thereby defusing the situation and eliminating any
fear generated by Wentworth Contrary to the hearing officer, these facts
do not support a finding that it was unreasonable for Lowney to fear
Wentworth , but rather support a finding that Wentworth had achieved
his desired result of coercing Lowney to support the Petitioner.
APPENDIX
OBJECTION NO. I
The Employer contends that the Petitioner threatened,
harrassed, and coerced employees such that their free
choice of representative was inhibited. The Employer
claims that Ray Wentworth, an employee of the Em-
ployer, is an agent of the Petitioner in this regard. The
Employer also contends that there existed at the time of
election such an atmosphere of fear and coercion that
employee free choice was impossible, and the election
should therefore be set aside. The Petitioner denies that
Wentworth was or is its agent, at any time, and does not
believe any pre-election conduct warrants setting the
election aside.
Mark Smith is, and has been at all times material, an
employee of the Town of Framingham. As such, Smith
is a member of the Laborers International Union, Local
1156. Smith was hired by Alan Walis, the Employer's
General Manager, in about mid-February to work on a
part-time basis as a driver and laborer. Smith in fact
worked for the Employer for only two days, about a
week apart, in late February. According to Smith, on his
first day of work, employee Jack Herman asked him
what his position was on the Union . Smith replied that
his motivation for working was money , and that his
opinion on the Union was none of Herman 's business. On
the second day of Smith's employment , about a week
later, employee Peter Thompson told Smith there was a
rumor going around that Smith had been hired by Walis
to vote "no" in the election . Smith denied this , and said
he didn't care one way or another about the Union. Ac-
cording to Smith, Thompson indicated something to him
to the effect that Thompson was in a position to make a
counter offer to purchase his vote . 4 Smith said that he
had no reason to be involved in the election.
The next day, Smith went in to his regular , full time
job at the Town about 10:00 p . m. According to Smith, a
fellow employee of the Town named Ken Howland told
him that a representative of the Teamsters had called,
looking for Smith, and asking for Smith's home phone
number (which was unlisted and which Howland did not
know).
The next day at his job at the Town, Smith's local La-
borers Union President, Cochrane, supposedly told
Smith that a representative of the Teamsters had called
and told Cochrane that he (the Teamster ) was accusing
Smith of being involved in union busting and it would be
smart for Smith to remove himself from the situation.
Cochrane is also supposed to have said some things to
the effect that Smith could be in physical danger unless
he left his employment at the Employer. Cochrane then
went on to describe how the Laborers used physical
methods to get what they wanted.
All of the above testimony relating to what Howland
told Smith , and to what Cochrane told Smith , is unreli-
able hearsay , and I find it constitutes an insufficient basis
to set aside the election. ATR Wire and Cable Co., 267
NLRB No. 28 (1983) (sl. op. at p. 9) (ALJ Decision).
The testimony is otherwise too incomplete to be attribut-
able to the Petitioner . Thus, Howland did not know who
the Teamster agent was that he supposedly spoke to.
Cochrane would not divulge , even to Smith , the name of
the Teamsters he supposedly spoke to . There is no way
for me to be sure it was a Teamster that Cochrane spoke
to. Anything Cochrane said to Smith about physical
danger, danger of job loss , or otherwise , is hearsay; it is
also unreliable because Cochrane 's supposed relating, to
Smith, of the conversation with a Teamster , was com-
bined with examples of Laborers violence .5 It is impossi-
ble, in this circumstance , to know what the Teamster (if
it was a Teamster on the phone ) said to Cochrane, and
whether what Cochrane related to Smith originated with
the Teamster or with Cochrane. Indeed, from my obser-
4 To the extent it is alleged that this "offer" to Smith constitutes objec-
tionable conduct , I do not agree There is no claim that Thompson is an
agent of the Petitioner , such that this conduct could be attributable to the
Petitioner. In any case, Smith could not recall the words used by Thomp-
son, and the belief that there was a counter offer was the result of "a
feeling" Smith got from the conversation. Accordingly , the testimony on
this point is too vague to conclude that an offer to purchase Smith's vote
actually occurred.
5 Threats allegedly made to Smith relating to Laborers violence are
irrelevant, absent evidence tying these threats to the Petitioner There
was no such evidence See also my discussion infra regarding the alleged
objectionable atmosphere of fear and coercion prior to the election.
UNITED BUILDERS SUPPLY CO 1369
vation of Smith during his description of the conversa-
tion between him and Cochrane, it was obvious that
Cochrane went well beyond the phone call, and Coch-
rane scared Smith by adding on his own that he (Coch-
rane) would not be surprised if there were people wait-
ing for Smith at the landfill where Smith worked 6
After the morning conversation with Cochrane, above,
Smith left the Town location He returned later that day,
and, according to Smith was told by a clerk that, in his
absence, he had received many phone calls from "a
bunch of guys" at the Employer. Smith then actually re-
ceived a call, about 2 30 p m. The voice on the other end
said that it was "a bunch of guys" from the Employer.
When the caller refused to identify himself, Smith hung
up. According to Smith, the phone rang again within
seconds The voice said it was "a bunch of guys " Smith
said, "Listen, Ray, I know this is you ," after which
the person identified himself as Ray According to
Smith, Ray said that the guys at the Employer had been
involved in the union situation for a while, that it was a
serious issue, and that they were not in a position to
allow Smith to change the outcome of the vote, and it
would be in his best interest to abstain from the vote
Smith told Ray that he would not involve himself in the
vote. Ray then admitted to Smith that he (Ray) had told
the Teamsters that Walis had bought Smith's vote Smith
got upset, and said he (Ray) should have talked to him
(Smith) before going to the Teamsters. Ray then put an-
other Ray on the phone, but this Ray was only on a
moment before he (the second Ray) had to get off the
phone. The witness did not know if the first Ray he
spoke to was Ray Wentworth, or not There is at least
one other Ray employed at the Employer, Ray Spicer.
Wentworth did testify at the hearing Wentworth
claimed that he did call Smith at work a few times and
did not get him; and when he finally did get through to
Smith, he only said that he could not understand how
anyone in a union, like Smith, could let himself be used
to determine the outcome of the election, and he did not
think it was fair.
Considering all the testimony it appears that the first
"Ray" to whom Smith spoke was, in fact, Wentworth. I
say this because much of the two witnesses' recollection
of topics discussed in the conversation is identical. I also
credit Smith in that Wentworth said something to the
effect that the union situation was a serious issue and that
he was not in a position to allow Smith to change the
outcome of the vote, and it would be in his best interest
to abstain from voting. Smith is a currently disinterested
witness, who testified on this point in a straightforward
manner , and appeared to me to make every effort to tell
the truth as he knows it However, I find this statement
by Wentworth too vague to constitute a threat of physi-
6 There is no direct evidence the Petitioner requested the Laborers to
take any part in the conversation, or to otherwise act as Petitioner's
agent Paul Walsh , Business Agent of Petitioner, credibly testified that he
was in touch with the Laborers, as part of his preparation for a then
scheduled representation hearing, to determine if Smith was a full time
employee of the Town in order to make his arguments that Smith was a
part -time employee or otherwise not appropriately in the bargaining unit
Walsh 's testimony on this point is buttressed by Petitioner 's Exhibit 5,
which is a letter from the Laborers confirming Smith's status
cal violence, or to engage in other objectionable con-
duct Wentworth's statement that the employees support-
ing the Union were not in a position to allow Smith to
change the outcome of the vote, and that they wanted
him to abstain, is a plea that Smith not vote against the
Union, and Smith agreed to do so I do not find such a
statement inherently to contain a threat of violence 7 I
am convinced that if Smith construed this as a threat he
did so in view of the comments of Cochrane earlier in
the morning That is the only antecedent that could con-
ceivably transform Wenthworth's statement into a threat
of physical violence, and if such a transformation oc-
curred, it was a result of Smith's own perception in view
of Cochrane's comments 8 It is not contained in the con-
text of Wentworth's statement, and there is no reliable
evidence attributable to Wentworth or the Petitioner
providing a violent background for this statement e I
cannot conclude that this statement objectively contains
a threat of physical harm
Employee Stephen Cornell testified that pro-union em-
ployee Gene LeVasseur told him in December, 1983,
that the Union could offer him better benefits. To Cor-
nell, this was "pressuring", and he went to Walis to com-
plain about it. Thereafter, Cornell testified, LeVasseur al-
legedly said to Cornell that if he (Cornell) thinks he is
under stress now, he (Cornell) has not seen stress yet.
This conversation then got heated, and Cornell told Le-
Vasseur to fire him, LeVasseur allegedly replied that he
(Cornell) would not be fired, but that he would be under
such stress that he (Cornell) would probably quit before
things were all over
According to Cornell, in February, the pro-union em-
ployees (estimated by Cornell at this time to be between
five and nine employees) voted not to talk to him any-
more This was supposedly related to Cornell by LeVas-
seur , who had apparently changed his mind and decided
to talk to him In any case, as a result of this "silent
treatment," Cornell did not want to deal with the pro-
union employees, and he would not deliver repair orders
of LeVasseur.
As to the above matters testified to by Cornell, even if
they occurred, I do not believe they could constitute
grounds to set aside the election The original conversa-
tion between LeVasseur and Cornell, wherein Cornell
feels "pressured" by LeVasseur generally discussing the
7 Even if it was a threat, see my discussion of Wentworth's agency,
infra
It is unclear whether, had Smith not quit his employment at the Em-
ployer, he would have been eligible to vote in the election, as the regu-
larity of his employment was not yet known
If Smith quit as a result of these events, I believe, it was mainly as a
result of his feelings after his conversation with Cochrane Again, the Pe-
titioner's role in that conversation is entirely hearsay, and I do not rely
on it Smith specifically testified much of his fear was from his personal
reaction to Cochran 's attitude and behavior , and Smith ' s experiences in
another city, rather than from anything said to him by anyone connected
with the Employer Cochrane even suggested to Smith that he (Coch-
rane) would not be surprised if people were waiting for Smith at the
landfill at which Smith worked, or if someone tried to get his union
"book'
9 Also, Smith testified that , in fact , his intention was to abstain in the
election and he told that to Wentworth There is no reason to believe
that Smith's promise to abstain, which he was going to do anyway, was
not satisfactory to Wentworth
1370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
benefits of a union, indicates an oversensitivity on Cor-
nell's part to pre-election discussion . This is underscored
by Cornell's request for LeVasseur, a co-employee, to
fire him . 10 As to LeVasseur 's comments about stress and
Cornell, they would not seem unwarranted in view of
Cornell 's feelings of "pressure" from a discussion about
better benefits. LeVasseur merely said Cornell would not
get fired but that the stress of the situation would force
Cornell to quit . In any case , this personal prediction by
LeVasseur of Cornell's ability to withstand the discus-
sion , debate, and tension of a campaign , is not a threat of
any kind. In view of Cornell's reactions, which were
confirmed by his demeanor" on the stand, and in view
of Cornell's own statement that the conversation with
LeVasseur was heated , I find this is an example of the
type of a personal relationship that is beyond the Board's
scope to police.12
Similarly , the "silent treatment" allegedly received by
Cornell is no more than the human activities of employ-
ees involved in a campaign , on a personal basis, and does
not rise to the level of objectionable conduct. Rather, it
expresses the natural desire for people to associate with
others of like mind. ATR Wire and Cable Co., supra (s l.
op. at p. 14) (ALJ Decision).
I do not credit a portion of Cornell's testimony regard-
ing Wentworth allegedly telling Cornell, at an undeter-
mined time prior to the election, that Cornell had not
been carrying much sheetrock, and, that when the Union
got in , that would change . Cornell seemed to strain to
recall this testimony . Most importantly , on direct exami-
nation by counsel for the Employer, Cornell indicated he
carries as much sheetrock as other employees; however,
on examination by counsel for the Regional Office, Cor-
nell admitted having giving a statement during the inves-
tigation of this case , to the effect that he does not in fact
carry much sheetrock because he "kisses ass " for the
company, and to the effect that he did not know how
much of this type of work other employees did. In view
of this direct contradiction , I find it impossible to con-
clude that Cornell was a trustworthy witness. In view of
his contradictory statements , it seems more likely that if
Wentworth said anything to Cornell on this topic, it was
simply a result of the fact that Cornell did not do as
much of this type of work as did other employees. In
any case, I cannot credit Cornell that Wentworth ever
said anything to him tying the Union to the issue of
sheetrock.
In addition to this indicia of untrustworthiness, which
I consider extremely potent , are my observations of Cor-
nell on the witness stand . His recollection of events in
general was very poor , and he strained to recall conver-
1° LeVasseur had no power to fire Cornell. Rather, Cornell testified
that LeVasseur is the mechanic, and he "could phony something up on
[his] truck , and put [him] to blame for it " This reaction also seems un-
warranted based on what LeVasseur said to him. In any case LeVasseur
indicated in the conversation no intent to do such a thing
' 1 See note 13 infra.
18 These comments could not be objectionable as such , since there is
no allegation LeVasseur is an agent Since I do not feel there was a
threat here, but rather a personal confrontation , I will not consider it as
an element in the overall atmosphere prior to the election.
sations . 13 He had great difficulty identifying the time
when events occurred , and often could not even make
reasonable estimates.
Cornell also testified that at an undetermined time
prior to the election, Wentworth told him that when the
Union came in, he (Wentworth) would be shop steward
and this would give him more seniority than Cornell,
and, with such seniority , Wentworth would get a better
truck than Cornell. Wentworth put forth a general denial
of this statement. I do not credit Cornell, and I do not
believe that Wentworth said he would get a better run-
ning truck if the Union got in . Cornell testified that he
asked Wentworth to "sell" him on the Union. This
indeed would have been a strange way for Wentworth to
do that . In any case , as Cornell was just above Went-
worth in seniority without the Union, and in view of
Cornell 's description of the differences between the two
vehicles, even if this statement was made, the matter in
issue is too inconsequential to amount to a threat of
poorer working conditions . Since I find , infra, that
Wentworth was not an agent of the Petitioner, I do not
believe Cornell could reasonably have perceived Went-
worth as capable of carrying out this statement , even if it
had been made.
Nevertheless, Cornell's testimony concerning another
incident involving Wentworth must be credited , in view
of corroboration. Cornell testified, and employee Everett
Mason testified , that early one morning in late March or
early April,14 at the Employer's premises , near the time
clock , Wentworth came in to the area and made a howl-
ing noise . Cornell asked him what that was, and Went-
worth replied that it was the "call of the Union," and
that he (Cornell) "better get to know what it means or
you probably won't have a job here long."
Cornell also testified that employee Ray Spicer told
Cornell that Cornell had a lot of nerve running up to
Walis all the time, and talking to him about the Union,
and that Cornell should knock if off or somebody was
going to get hurt in the end. Spicer did not testify, and I
have no choice but to assume this occurred substantially
as Cornell relates.
Employee Michael Lowney testified that in February,
he was at work , and Wentworth asked him which way
he was going to vote . Lowney told him that he did not
know. Wentworth told him that was no way to be, that
Lowney should make Lip his mind which way he was
going to vote. Wentworth then said to Lowney that if he
went the way he did last time (in a previous campaign
between the Employer and Petitioner in 1981) that
Lowney would find that he would have some problems.
is He also seemed to strain to understand the questions he was asked.
This was most apparent from his facial expressions , and from the fact that
he was rocking back and forth in the witness chair while testifying.
Beyond this, he was difficult and uncooperative on cross examination,
and he seemed reluctant to answer on both direct and cross He seemed
to get angry with counsel for Petitioner , and lose his patience with coun-
sel's attempts to examine in detail.
14 Cornell was unable to place a time reference on this instance, and I
rely on Mason in this regard To the extent there are variations between
Mason 's version and Cornell 's version , I find Mason's version to be the
more reliable . I do not credit Wentworth 's denial of this event inasmuch
as both Mason and Cornell related aspects of this incident to involve job
loss. See also my comments regarding Wentworth 's credibility , infra.
UNITED BUILDERS SUPPLY CO. 1371
Wentworth did not say what those problems might be,
and Lowney did not ask. Lowney did testify as to a pos-
sible "explanation" of what those problems may have
been. At a later time of which Lowney was not sure, but
perhaps 3 or 4 weeks later, Wentworth apparently said
something to Lowney about grievances. Lowney indicat-
ed that Wentworth said that if he had a grievance, they
(the Union) would not bring it up to the company, and if
the Employer had a grievance against Lowney, they (the
Union) would help the Employer fire him.
Lowney testified that at some time after Wentworth
told him he could have problems, Wentworth also told
him that if he voted the way he did in the previous elec-
tion, he would find himself "harmed." Nothing else was
said about the nature of'this harm.
Lowney's memory of the time references of certain
events is weak, but otherwise he seemed a credible wit-
ness. The only part of the testimony, above, which is
questionable, is Lowney's testimony that Wentworth
used the word "harmed." This seems like an awkward
and unusual word to be used in the context of the work
place. However, on balance, I find Lowney's testimony
on this point more credible than Wentworth's, to the
extent they conflict. t s
Lowney also testified that Wentworth called him. at
home a number of times during the pre-election period.
The exact number of such calls, and the time period over
which they occurred, is unclear from Lowney's testimo-
ny, but it seems that Wentworth called Lowney at home
between 8 and 16 times over a six or seven month time
period. To the extent this number of calls is itself assert-
ed to be harrassment, it does not seem to me that an av-
erage of two phone calls a month, from one employee to
another, to discuss a matter of great concern, is exces-
sive. 16
Lowney testified, and Wentworth admits, that on a
few occasions when he called, Lowney's young daughter
answered the phone, and Wentworth would identify
himself as Santa Claus or Mickey Mouse. Lowney
claimed this upset his daughter, while Wentworth assert-
ed she seemed entertained by this. On some occasions,
when Lowney was not home, Wentworth spoke to his
wife, an epileptic, and upset her. Lowney's wife did not
testify, and the content of those conversations is un-
known. Then, about a month before the election,
Lowney approached Wentworth, shook hands with him,
is In general, I did not find Wentworth to be a very credible witness.
He often tried to answer questions other than those asked, in order to put
on the record his point of view, even on direct examination. He was eva-
sive in his answers, particularly on cross-examination , where he was diffi-
cult, uncooperative , and sometimes not responsive . Some of his testimony
was inherently incredible. For instance , he admits he called employees at
home, but claims it was merely to ask them how they felt about the
Union, not to try to convince them to vote for the Union. This is not the
testimony of a completely trustworthy witness. Where Wentworth's testi-
mony is in conflict with that of another witness, I have credited the other
witness except where noted, such as in the case of Cornell. I have not
discredited all of Wentworth 's testimony , and I do rely on it in certain
noted areas , and at times when it is uncontroverted or consistent with
logic.
16 In addition , at some point in the campaign , • Walis instituted a rule
that prounion employees and antiunion employees should not talk to each
other about the Union on the Employer's premises. In this circumstance,
the telephone seems a reasonable method for an employee to use to con-
tact other employees and legitimately discuss issues.
an told Wentworth he was with him on the Union one
hundred percent. Thereafter, the calls stopped, until
Lowney went into the hospital for two days, about April
4 and April 5. Lowney testified that in those two days,
Wentworth called Lowney's wife twice, and she had a
small seizure because of the first phone call. The only
testimony on the content of these conversations was of-
fered by Wentworth. He testified he called Lowney's
wife the first time, to see when Lowney would be get-
ting out of the hospital;" and called her a second time,
because he heard from Walis that the first call had upset
her, and he wanted to apologize to her. Then, there was'
one last time Wentworth called Lowney at home, after
he got out of the hospital, on about April 5. 111
Regardless of Wentworth's agency status, I would find
the phone call incident to be conduct insufficient to set
aside the election. Firstly, the number of phone calls-an
average of about two calls a month to Lowney's home,
is not so excessive as to constitute harrassment. There is
no evidence these calls were made at an unreasonable
hour, or the like. In any case, about a month before the
election, the calls ceased on Lowney's representation to
Wentworth that he was with, him one hundred percent.
There were no more calls until Lowney went into the
hospital. In the absence of testimony to the contrary, and
in the absence of testimony of threats or other similar
conduct in the phone calls of April 4 and 5, I accept
Wentworth's explanation that he called Lowney's home
to find out when he would be home from the hospital.19
In view of the general cessation of phone calls, I do not
find that 2 phone calls a month, ending a month before
the election, is harrassment.
Lowney also testified that, about a month before the
election, Lowney entered the Employer's garage as
Wentworth, LeVasseur, and a couple of others (who
Lowney could not recall) were talking. He heard Went-
worth and LeVasseur discussing the fact that employee
Ted Scesny would be blackballed by the drivers of an-
other company, represented by the Teamsters.
Lowney testified that, on another occasion, Went-
worth was talking to LeVasseur about having employees
Jim Young and Steve Cornell "running scared."
Lowney's recollection of these events was very poor
as -to time frame, content of the statements, and circum-
stances. The conversation concerning Scesny that was
testified to by Lowney is incomplete and vague.
Lowney, coming into the conversation at the middle, did
not indicate under what circumstances, perhaps job-relat-
1' Wentworth wanted to know this, he claims, to know whether to
visit him, to send candy to the hospital and so on . This was not contra-
dicted, and in view of the cessation of phone calls after the handshake, I
find it logical. It also appears the Union did in fact send some flowers to
Lowney when he was in the hospital.
19 On April 10, Lowney and his wife filed a police report. The idea of
filing this report came from Harold Gelb, a former general manager of
the Employer who now works in the office.
19 Wentworth gave inconsistent and wavering testimony on whether
he knew, prior to the election, that Lowney's wife had health problems. I
conclude from the totality of the evidence that he did know this. Howev-
er, there is insufficient evidence to conclude that he knew she was sub-
ject to epileptic seizures , or that he was trying to induce a seizure, espe-
cially since, the last Wentworth knew, Lowney was with him one hun-
dred percent. See note 17 supra.
1372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ed and perhaps not , or for what reasons , perhaps person-
al, this blackballing would take place.20 As to the "run-
ning scared " conversation , on cross examination it
became clear that this was not a threat , but rather, Went-
worth and LeVasseur were counting votes and believed
there were enough prounion votes such that the antiun-
ion employees were afraid of losing the election.
Employee James Young testified that in September,
1983, he told LeVasseur that he was satisfied with condi-
tions at the Employer as they were. LeVasseur replied
that guys who did not go along with the Union would
not be working there, just like after the last election.
This testimony was not rebutted, and I credit it, notwith-
standing that there was no evidence that antiunion em-
ployees lost their jobs after the last election at the Em-
ployer, in 1981.
Young has had a back problem for the last year and a
half or so, and apparently did not carry as much sheet-
rock as other employees because of this. Young became
of the belief that employees were complaining (to each
other) about this, and accordingly, in December, 1983,
Young confronted employee Pat Farrell on this issue,
and told him to stay out of his business . The next day,
someone told Young that Spicer was saying something
about his back, and Young decided to confront Spicer
about it. Young also told Spicer to stay out of his busi-
ness . They apparently argued over Young's physical abil-
ity to carry sheetrock, and Spicer indicated there may be
grievances filed on it if the Union got in .2 t Then, Young
suggested they go talk to Walis, which they did. They
went to Walis' office, and Young pulled Spicer's time-
card, and said Spicer had been late to work for four
years. Young and Spicer then each got hot, and started
poking each other and telling each other to stay out of
their respective businesses. They then got in a thirty
second fight, or wrestling match, which was broken up
by employees in the area . Walis took them outside and
made them apologize.
The Employer appears to contend that this is some
sort of physical attack by Spicer on Young, which can
serve as ground to set aside the election. Quite to the
contrary , I see no reason to believe this is related to the
representation case at all. Clearly, Spicer and Young
were having a personal argument about each minding his
own business , and things got out of hand . There is no
evidence on which to base a conclusion that Spicer was
angry at Young because of a union related matter ; rather,
it seems clear Spicer was angry because Young pulled
his timecard and accused him of perpetual tardiness. See
20 Walis testified to a conversation, in late March, with Wentworth,
concerning the potential blackballing of employees Scesny and Winches-
ter by employees of Catalano Trucking. According to Walts, Wentworth
told him that Catalano employees, who deliver to the Employer daily,
and are members of Petitioner, would keep Scesny and Winchester out of
the Union and therefore they could not work for Walis. It does not
appear from the record that this conversation with Walis is the same as
the "blackballing" conversation partially overheard by Lowney, as it ap-
pears to have occurred in another location, at another time , and to con-
cern different employees In any case, there is no evidence any employee
definitively heard this in the manner related by Walis, and accordingly I
would not find it to be ground to set aside the election.
2' There is no contention Spicer is an agent of the Petitioner
Scintilla Power Corp. v. N. L.R.B., 707 F.2d 419, 113
LRRM 2865 (9th Cir. 1983).
Thereafter, one day in March, Young was near the
timeclock, and Wentworth, LeVasseur, and employee
Ken Tobin were around. Employee Peter Thompson
passed by and said he was going on another "hump job"
(carrying sheetrock). Then, Wentworth made a comment
about all drivers having to carry sheetrock, and Thomp-
son said that was so unless someone had a back problem.
Wentworth said that would change, and Young started
saying to the assembled employees that he was just
trying to do his job. Young then approached Thompson,
who had by this time gone outside into the yard. Young
told Thompson he did not want to hear anymore about
his back. Thompson said okay. Young went back inside,
and told Wentworth he had had it, and did not want to
hear anymore about his back. Wentworth said that when
the Union gets in, things would change. Young kept
asking him what he meant , and Wentworth kept saying
things would change, that it would be out of his hands
when the Union got in. This apparently was asked and
answered in that way, a few times, and then LeVasseur
said to Young to back off before he got hurt.
By Young's own admission, both he and Wentworth
were getting a little heated by the end of this exchange.
In this context, and especially in view of the fact that
Young had previously been involved in one altercation, I
do not find LeVasseur' s comments to be a threat to re-
taliate against Young because of his Union statements.
Rather, it seems to me LeVasseur was just trying to keep
things from getting out of control again . 22 Young in fact
carries less sheetrock than do other employees, and this
is apparently of concern to some other employees. I do
not believe snide remarks, or one employee giving an-
other a tough time, over an issue on which Young is
clearly sensitive , constitute a basis to set aside the elec-
tion.
The totality of the evidence above regarding Went-
worth indicates that about late March, Wentworth made
a howling noise and told Cornell, within the earshot of
Mason, that the noise was the "call of the Union" and
that Cornell better get to know what it means or he
"probably won't have a job here long"; in February,
Wentworth told Lowney that if Lowney went the way
he did in the previous campaign, that Lowney would
have some problems, and at a later time Wentworth said
something to Lowney indicating that if Lowney had a
grievance, the Union would not bring it up to the Em-
ployer, and if the Employer had a grievance against
Lowney, the Union would help the Employer fire him;
on another occasion , Lowney was told by Wentworth
that if he voted the way he did in the previous election,
he would find himself "harmed." Lowney told employee
Cornell about this latter statement. The Employer con-
tends that Wentworth is an agent of the Petitioner, and
that the above acts by Wentworth are thus acts by the
za To the extent Wentworth 's comments preceding this, to wit, that
things will change once the Union gets in, are claimed to be objection-
able, I find the comments too vague to constitute any kind of threat
Indeed Wentworth indicated that , if the Union got in, the matter was
beyond his control . On election day, Wentworth apologized to Young
UNITED BUILDERS SUPPLY CO 1373
Petitioner, and that they constitute grounds on which to
set aside the election
The evidence establishes that, in the curent campaign,
Wentworth was the employee that first contacted the Pe-
titioner, and at least some employees considered him the
leader Wentworth received authorization cards from Pe-
titioner's Business Agent Paul Walsh, to distribute to em-
ployees, and he in fact did so Wentworth also gave
cards to other employees, such as LeVasseur and
Herman, so that they could solicit signatures Wentworth
collected the cards from other solicitors and forwarded
them to Walsh
Its seems clear from the evidence that Wentworth was
an active and vocal union supporter, that he passed out
authorization cards, that he arranged meetings and en-
couraged employees to attend meetings, and that he
phoned employees at home to discuss the union 23
During the campaign, Wentworth arranged - 18-25
meetings at a local bar, the Red Star. Some of these
were impromptu employee meetings, after work '24 and
some were more formal Union meetings Walsh was
asked by Wentworth to come to about three or four of
these meetings, and Walsh did come and talk at three or
four meetings Wentworth invited employees attend
these meetings at the Red Star. There is some evidence
other employees called some of the impromptu meetings,
and that other employees besides Wentworth invited em-
ployees to attend such meetings
That Wentworth was an active and vocal union sup-
porter is an insufficient basis on which to conclude he is
an agent Tuf-Flex Glass, a part of Libbey-Owens-Ford
Company v NL.R B, 715 F 2d 291, 114 LRRM 2226
(7th Cir 1983), enfg. 265 NLRB No 101, J. C Penney
Company, Inc, 215 NLRB 24 (1974) There is no evi-
dence Wentworth was ever promised or received money
or a similar benefit from the Petitioner 25
23 Wentworth claimed, at least to Waits, that he would be a steward if
the union got in I do not credit Cornell that this was said to him Even
if it was said, it is not ground to conclude Wentworth is an agent, in the
absence of the Petitioner being aware of this statement, or otherwise
lending credence to it The Methodist Home, 253 NLRB 458 (1980)
24 The use of the word "meetings" here is perhaps a bit strong Appar-
ently, union supporters gathered at the Red Star on a not irregular basis,
and often, at these gatherings, they would discuss union issues There is
evidence that other employees called such "meetings," besides Went-
worth
25 Wentworth's request of Walis for reimbursement for phone calls
shows, contrary to the Employer, that the Union was not reimbursing its
"agent " for these calls Rather, this evidence shows that such expenses
were incurred by a zealous employee
Wentworth apparently bought some drinks for employees at some
union "meetings," and invited employees to meetings with the offer that
"the drinks are on me " However, the evidence is uncontroverted that at
the Red Star, employees gather, whether at union "meetings" or other-
wise At these gatherings, employees are always buying each other
rounds of drinks Accordingly, I do not find Wentworth's conduct in this
regard as anything out of the ordinary course of employees purchasing
drinks or refreshments for each other as friendly gestures To the extent
the Employer contends this evidence either supports the notion of Went-
worth's agency, or itself constitutes objectionable conduct, I therefore
give it no weight in either regard Wentworth may have said to Waits
that he had been buying an employee drinks for months and now he was
worried about his vote I find this statement is only an off-hand expres-
sion of a Union supporters' concern that an employee who once support-
ed the Union may no longer be doing so
I credit Walis that Wentworth asked him, apparently as part of negoti-
ations to settle on unfair labor practice complaint, to reimburse Went-
Beyond this, there is no evidence Walsh did anything
at all to place Wentworth in a position of importance or
to clothe him with actual or appearing authority to act
on behalf of the Petitioner Rather, Walsh credibly testi-
fied he specifically did not do so ATR Wire and Cable
Co, supra (sl op at 12) (ALJ decision) There is no evi-
dence Walsh condoned or was even aware of the state-
ments of Wentworth Firestone Steel Products Company, A
Division of Firestone Tire and Rubber Company, 235
NLRB 548 (1978).
An important factor here is that I do not believe em-
ployees would reasonably have believed Wentworth was
an agent of the Petitioner Walsh made his presence
known at three or four union meetings He communicat-
ed with employees by letters 26 Most importantly, em-
ployees would know that Wentworth was not identical
with the Petitioner because of the previous representa-
tion campaign This campaign was conducted only a few
years earlier, and Wentworth was not even employed by
the Employer at that time Thus, employees knew that
the Petitioner existed well apart from Wentworth. Other
employees had been prominent in the previous campagin,
and some of those were prominent this time around, as
well. In view of this, and of Walsh's presence, and of the
active role taken in the campaign by other prounion em-
ployees, it would be wholly unreasonable for an employ-
ee to have believed Wentworth was an agent of the Peti-
tioner 27 Over the course of two campaigns, it certainly
worth for expenses of paying for things at Union meetings It appears this
was an attempt by Wentworth to increase the monies he claimed were
due to him under the complaint, in any case, Wentworth's asking Walis
for this money also does not show he was clothed with any authority by
the Petitioner This is especially so in view of evidence that other em-
ployees spent money at the Red Star in no greater proportion than did
Wentworth
It appears Wentworth also boasted to Waits of his ability to take care
of any problems with prounion employees Such boasting or declaration
of his ability does not in fact make it so, and I find no evidence that,
other than the settlement negotiations (described separately) Wentworth
in fact performed such a function
Walls also testified that Wentworth made various comments about how
Wentworth would not let Smith jeopardize the campaign However, the
only person he contacted in pursuit of that goal was the Petitioner I
have above indicated that I credit Walsh as to the conduct he engaged in
to keep Smith out of the unit I credit Smith to the effect that Wentworth
called Smith at his job with the Town of Framingham That is the extent
to which I find Wentworth's statements of anger over the hiring of Smith
to have come to pass
26 The Employer also communicated with employees by letter One
such letter, Union Ex 2, carries an implication that if employees are
claiming to be Union organizers, such a claim is untrue
27 For instance, Young testified that Wentworth told him that he had
had a conversation with an unnamed Teamsters official about how the
Teamsters would not sit around in $50,000 cars while he was on a picket
line, and that there would not be any strikes Such comments would not
reasonably lead an employee to believe Wentworth had any inside infor-
mation from anyone That strikes can happen is a fact of industrial life,
and was pointed out by the Employer in such as Union's Exhibits 1 and
3 Employees, such as Young, are sophisticated in matters of concern to
them, and are capable of evaluating statements like this one, to be of such
small likelihood as to shed serious doubt on Wentworth's reliability Also,
some employees who were very active in the previous campaign, such as
David Crossman, were not involved with the Union this time This
would reasonably show any employee, who did not otherwise know, that
employee "leadership" in campaigns can be a transient matter
1374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does not appear that Wentworth was the only contact
with the Petitioner .28 Although Wentworth was the Pe-
titioner 's observer at the election , he apparently was lim-
ited to the usual duties of an election observer.
Even if Wentworth made statements , to Walis or oth-
erwise , to the effect that he was authorized to act on
behalf of the Petitioner , 29 such claims of agency status
by an employee do not establish the existence of a princi-
pal-agent relationship . Bujkor-Pelzer Division, Inc., 169
NLRB 998 (1968).
On September 22, 1983, the Petitioner filed an unfair
labor practice charge in Case No. 1-CA-21,391. On Oc-
tober 11, 1983 the Petitioner filed an unfair labor prac-
tice charge in Case No. 1-CA-21,461. On December 2,
1983 the Regional Director for Region 1 issued a con-
solidated complaint against the Employer, alleging inter
alia , the discriminatory lay off or discharge of Herman,
Wentworth, and Tobin, and the discriminatory reduction
in hours of LeVasseur. On or about February 24, 1984, a
Settlement Agreement with accompanying Notice to
Employees was executed by the parties.30 Walis testified
that, at various times after his layoff in September, 1983,
Wentworth came to the Employer's premises . On some
of these occasions , Wentworth discussed settlement of
the cases . In course of these conversations , Wentworth
discussed with Walis the amount of backpay for himself
and others, and the terms of a final warning notice to
employee Tobin, to be part of the settlement . The Em-
ployer relies on these negotiations , and upon the Peti-
tioner's subsequent ratification of terms agreed upon be-
tween Walis and Wentworth as to backpay and the final
Tobin warning notice , as evidence of the agency status
of Wentworth. However, the totality of the evidence in-
dicates that Wentworth was negotiating on his own
behalf,91 not that of the Petitioner.
By Walis' own admission , Wentworth was willing to
undermine the Petitioner in the settlement negotiations.
In these discussions Wentworth offered to see that the
representation petition was withdrawn , and the election
was called off, if Walis struck a good enough deal with
Wentworth and the rest of the employees . In particular,
Wentworth made the offer to get the election called off
if Walis would pay the employees a dollar per hour less
than union wage . This search for a "mutually beneficial
alternative" to the Petitioner is certainly not the offer of
a Union agent , and makes clear that Wentworth was ne-
gotiating on his own behalf, and perhaps that of other
28 To the extent , if any , that the Employer asserts that all prounion
employees , or some smaller number thereof, comprise an in-house com-
mittee, and are agents of the Petitioner, I reject that contention Interna-
tional Ladies Garment Workers ' Union , AFL-CIO, 214 NLRB 706, 707-
708 (1974) (ALJ Decision), Mike Yurosek & Sons, 225 NLRB 148, 149-
150 (1976), Cambridge Wire Cloth Co., 256 NLRB 1135 ( 1981).
29 In his zeal, Wentworth tried to phone Vicki Saporta in the organiz-
ing department at the Teamsters International office This effort , under-
taken on his own, does not support a finding of agency Sec also notes 23
and 25 supra
30 To the extent not reflected in the record , I have taken notice of
public Board documents.
31 Representing himself and /or other employees is not equivalent to
representing the Petitioner , as the interests of the Petitioner and those of
employees can be very different.
employees , but certainly not as an agent of the Petition-
er.32
Having concluded that Wentworth was not and is not
an agent of the Petitioner , it is necessary to examine his
conduct , as well as all other conduct, as that of rank and
file employees . "[T]he test to be applied in determining
whether an election will be set aside on the basis of con-
duct not attributable to one of the parties is whether the
character of the conduct was so aggravated as to create
a general atmosphere of fear and reprisal rendering a free
expression of choice of representatives impossible ... .
The question of whether or not such an atmosphere ex-
isted does not turn on the election results , but rather
upon an analysis of the character and circumstances of
the alleged objectionable conduct ." Central Photocolor
Co., Inc., 195 NLRB 839 (1972). In this regard, the
Board evaluates the nature of the threat ; the degree of
dissemination of the threat; whether the person making
the threat was capable of carrying it out ; whether it is
likely employees acted in fear of his capability of carry-
ing out the threat; and whether the threat was "rejuve-
nated" at or near the time of the election . Westwood Ho-
rizons Hotel, 270 NLRB No. 116 (1984) (sl. op. at p. 5
and cases cited therein ). In making this evaluation, the
Board attempts to establish ideal conditions , but has ac-
knowledged that "actual facts must be considered in
light of realistic standards of human conduct , and that
election must be appraised realistically and practically,
and should not be judged against theoretically ideal, but
nevertheless artificial , standards ." Owens-Corning Fiber-
glass Corporation, 179 NLRB 219, 223 (1969), citing The
Liberal Market, Inc., 108 NLRB 1481, 1482 (1954). In
this regard, the conduct of third parties33 "tends to have
less effect upon the voters than similar conduct attributa-
ble to the employer who has, or the union which seeks,
control over the employees ' working conditions." Orle-
ans Manufacturing Company, 120 NLRB 630, 633 ( 1958).
In light of the foregoing , I cannot conclude that there
here existed such a general , widespread atmosphere of
fear and coercion as to warrant setting aside the election.
The statements made by Wentworth to Lowney that
he would have some "problems" and that the union may
mishandle grievances relative to Lowney if he voted the
same way as in a previous election , are directed toward
events that, reasonably , Wentworth would not be capa-
ble of carrying out. The statement to Lowney that, if he
voted the same way he did in the last campaign he
would be "harmed ," is too vague to constitute a serious
threat of physical danger from a person with no history
of engaging in such behavior . In any case , I do not be-
lieve that, by the election date, Lowney was or reason-
32 The Notice to Employees , accompanying the Settlement Agree-
ment , was never discussed between Walis and Wentworth . Obviously, the
Petitioner had a large role in the negotiation of the Settlement, and did
not just leave it up to Wentworth.
Moreover, it does not strike me as unusal that an alleged discriminatee
would discuss settlement , especially money , with an employer, and then
related those discussions to a charging party . In general , providing the
Petitioner with information from the workplace does not make Went-
worth an agent . Six Flags Over Mid-America. Inc., 253 NLRB 111 ( 1980).
as Rank and file employees are considered third parties . Six Flags Over
Mid-America , supra.
UNITED BUILDERS SUPPLY CO. 1375
ably should have been in fear because of these state-
ments . Prior to the election, Lowney had shaken hands
with Wentworth and told him that he was with the
Union supporters one hundred percent. Wentworth no
longer called his home to discuss the Union after this.
Although Lowney's ability to place events in time was
quite poor, it appears that none of the above statements
by Wentworth occurred between the handshake and the
election. Thus, Lowney himself had defused the situation
and eliminated any fear generated by Wentworth.
The evidence shows that employee Cornell was told
by Wentworth that if he did not learn a certain howling
noise, he probably would not have a job long. It is hard
to believe that this would be viewed as a serious threat
in the context of the wolf-like, moon-baying noise ac-
companying the statement, I believe that Cornell's utter
inability to indicate when this occurred, or even how
close to the election this was, underscores the notion that
he did not take the threat seriously enough to carry into
the voting both. Mason overheard this statement, but it
was not directed at him . In any case, if taken seriously,
this statement would reinforce desires of employees to
vote against a union, rather than coercing someone to
vote for a union.
Apart from Wentworth's statements above, the only
other statements34 which I have found in fact occurred,
or which I have found could possibly have generated
some level of fear or coercion, are a statement by Le-
Vasseur, in September of 1983, to Young, that employees
who didn't go along with the Union would not be work-
ing there , just like after the last election ; and a statement
by Spicer to Cornell about a month before the election
34 To the extent the Employer contends that the events involving em-
ployee Smith , above, contributed to an atmosphere of fear and coercion
which warrants setting the election aside, I do not agree . I have found no
evidence that any agent of the Petitioner or any employee seriously
threatened Smith . Rather , any fear which may have led Smith to quit
was based on his subjective reaction to the statements of Cochrane,
which statements have not been shown to have been related to Petitioner.
Such objective reactions are entitled to little weight in determining the
question of objectionable conduct International Ladies Garment Workers'
Union AFL-CIO, supra, at fn 1 ; G H. Hess Incorporated, 82 NLRB 463
(1949) at in . 3. This is especially so here , since, under the circumstances
involving Smith , I find that his fear of violence originated as a combina-
tion of Cochrane 's rumors of Laborers violence , other rumors about the
Teamsters that Smith had heard in his life , and Smith 's experiences in
other cities Under these circumstances , Smith possibly relating these
events to employee Young is merely a continuation of the hearsay rumor
and subjective reaction of Smith, and insufficient to set aside the election.
Price Brothers Company, 211 NLRB 822, 823 (1974), Campbell Soup Com-
pany, 225 NLRB 222, 229 at n. 11 (1976 ) (ALJ Decision); Certainteed
Corporation v. NLRB, 714 F 2d 1042, 114 LRRM 2541 (11th Or . 1980).
Only one other employee may have been exposed to such rumors spread
by Smith and there is no evidence that rumors of Teamster caused vio-
lence, in general , were consistently repeated during the campaign or
close to the election , except perhaps by the Employer . See Union Exhibit
2. If the Employer did contribute to the perpetuation of such a rumor, it
cannot benefit from the rumor . C.f. Beaird-Poulan Division, Emerson
Electric Company, 247 NLRB 1365, 1370 (1980) (ALJ Decision).
that Cornell had a lot of nerve running up to Walis all
the time talking to him about the Union, and he should
knock it off before somebody gets hurt.
The statement by LeVasseur is some seven months
prior to the election, and there is no evidence the state-
ment was "rejuvenated" closer to the election. It is thus
too remote to have any impact on the election. Cross
Baking Company, Inc., 191 NLRB 27 (1971) (two months
prior to election as too remote). In any case it would not
be ground to set aside the election, Zeigler Refuse Collec-
tors, Inc., 245 NLRB 449 (1979). The statement by Spicer
occurred about a month before the election and is
remote as well in view of the lack of evidence of "reju-
venation." It also is somewhat ambiguous as to what
Spicer may have been saying here. It is unclear from the
record whether the statement is some sort of threat to re-
taliate against Cornell if he did not support the Union,35
or whether it is directed toward Cornell's conversations
with Walis on any other topic. It appears Cornell may
have told two other employees (Young and Scesny) of
this statement.
The acts above do not have the pervasive characteris-
tics necessary to warrant setting the election aside. The
limited conduct above does not demonstrate widespread
fear inhibiting employee free choice. No event (except
under Mason's memory, the howling incident) was close
in time to the election. No threat was made by a person
capable of carrying out the threat,36 and indeed, the
nature of the statements themselves is ambiguous.
In sum , these comments are not of the type to have a
coercive impact upon employees in an industrial setting.
Such statements are "almost inevitable in the course of a
heated election campaign and most employees doubtless
expect such exchanges." N.L.R.B. v. Bostik Division,
USM Corporation, 517 F.2d 971, 972, 89 LRRM 2586
(6th Cir. 1975), enfg. 209 NLRB 956.37 Taken together,
they fall short of demonstrating a pervasive pattern of
fear or intimidation directed at anti-union employees. I
do not believe that the atmosphere existing at the time of
the election was such that employees were unable to
freely cast their ballots for or against the Petitioner. Ac-
cordingly, I find no merit to Objection No. 1.
as Such threats of job loss for failing to support a union are capable of
employee evaluation as illogical and unenforceable Janler Plastic Mold
Corporation, 186 NLRB 540 ( 1970). See also Salem No. 1. inc. d/b/a the
Seville , 262 NLRB 1282 at fn 2 ( 1982).
36 In view of this , I do not rely to any extent , upon the fact that an
alleged threat may relate to future , or post-election conduct . Anthony and
Karney Scioscia, d/b/a Home & Industrial Disposal Service and Fanwood
Disposal Service, 266 NLRB No 22 (1984).
37 Indeed , the tone , and number of the alleged objectionable conduct
in this case is less than that of Bostik The off-hand comments there as to
what could happen if a union got in were similarly beyond the speakers
authority to accomplish, the "threats" there, as here , are no more than
expressions of displeasure at views expressed against the union . See also
ATR Wire and Cable Co, supra.