Kitchen Fresh, Inc. v. N.L.R.B.

• Decision Date: 26 October 1983
• Docket Number: No. 81-1635,81-1635
• Citation: 716 F.2d 351
• Parties: 114 L.R.R.M. (BNA) 2233, 98 Lab.Cas. P 10,398 KITCHEN FRESH, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 351

716 F.2d 351

114 L.R.R.M. (BNA) 2233, 98 Lab.Cas. P 10,398

KITCHEN FRESH, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-1635.

United States Court of Appeals, Sixth Circuit.

Argued May 11, 1983.

Decided Aug. 19, 1983.

Rehearing Denied Oct. 26, 1983.

Ronald G. Ingham (argued), Clements, Ingham & Trumpeter, Chattanooga, Tenn., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, Lawrence Blatnik (argued), N.L.R.B., Washington, D.C., for respondent.

Before LIVELY and ENGEL, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

The petitioner, Kitchen Fresh, Inc., seeks review of an order of the National Labor Relations Board (Board) requiring it to bargain with the representative certified by the Board over the Petitioner's objections. The Board has cross-applied for enforcement of its order, issued as a result of its finding that the Petitioner violated Sec. 8(a)(1) and Sec. 8(a)(5) of the National Labor Relations Act. ¹ We grant the petition for review and deny the Board's cross-application for enforcement.

The dispute underlying the Board's order concerns the Board's earlier decision to certify the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local # 515 (Union) as the exclusive bargaining representative of an appropriate unit of the Petitioner's employees. On November 23, 1979, the union filed a representation petition with the Board, and a stipulation was entered which defined the appropriate bargaining unit for purposes of the election. The election, which was held on January 17, 1980, was won by the union. ²

The petitioner filed 11 objections to the conduct of the election. ³ The Board's Acting Regional Director, after conducting an administrative investigation, recommended that a hearing be held to resolve the issues raised by objection 6 and that the other objections should be overruled. On March 26, 1980, the petitioner filed timely exceptions to the Regional Director's report, asserting that a hearing was also necessary to resolve the issues raised by objections 1-4, 7, and 9-11. In its decision and order issued on July 9, 1980, the Board adopted the Regional Director's recommendations, ordered that a hearing be held on objection 6, and overruled the remaining objections.

On remand, a hearing was held on the issues raised in objection 6 on August 12, 1980; the hearing officer concluded that objection 6 was without merit and recommended that the union be certified. The petitioner filed exceptions to the hearing officer's recommendation with the Board. The Board, however, adopted the hearing officer's recommendation and certified the union on December 17, 1980.

Shortly after the Board certified the union as the exclusive bargaining agent for the petitioner's employees, the union requested information regarding the employees in the bargaining unit. The petitioner refused to provide the information, maintaining that the union was improperly certified. In April, 1981, the General Counsel issued a complaint alleging that the Petitioner refused to bargain with the union in violation of Secs. 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. Secs. 158(a)(1) and (5). In its answer, the petitioner admitted that it had refused to bargain with the union, but asserted that the union was improperly certified. The Board granted summary judgment, concluding that the certification question had been previously litigated and that no new evidence had been presented in the unfair labor practice proceeding. In this court, the petitioner's arguments are directed solely to the certification issue: it argues that the Board's certification of the union was improper because the Board failed to hold a hearing on objections 1-4, 7, and 9-11 and because it concluded that the conduct complained of in objection 6 did not warrant a new election.

In objection 6, the petitioner alleged that union representatives or agents were responsible for circulating a rumor among the petitioner's employees that the petitioner would be able to purchase the authorization cards from the Board and discharge the signers if the union lost the election. The fact that this rumor circulated among the rank-and-file employees is not seriously disputed. The question is whether the union must be held responsible for the rumor ⁴ or, if the union was not responsible, whether the deleterious effect of the rumor had dissipated by the time of the election. NLRB v. Bostik Division, USM Corp., 517 F.2d 971, 975 (6th Cir.1975). The Board found that the union was not responsible for the rumor and that the rumor had been adequately dispelled by the time of the election. These findings must be upheld if they are supported by substantial evidence in the record considered as a whole. N.L.R.B. v. Bostik Division, USM Corp., 517 F.2d 971, 976 (6th Cir.1975).

The petitioner offers two bases for attributing responsibility to the union. First, it argues that Teamsters' organizer Eugene Logan repeated the rumor at several union meetings. Second, it asserts that Glenda Walsh, the nominal head of the in-plant-organizing committee, repeated the rumor and that Walsh's actions must be imputed to the union because of her status as head of the organizing committee. Clearly, responsibility for the rumor must be attributed to the union if either Logan, the Teamsters' organizer, or Walsh, acting as union agent, perpetuated the rumor. See Harlan # 4 Coal Co. v. NLRB, 490 F.2d 117, 124 (6th Cir.1974) cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974).

Logan's role in perpetuating the rumor was sharply contested before the Board. One of the petitioner's employees, Ms. Dale Kilgore, testified that Logan had repeated the rumor at an organizational meeting and that, in a phone conversation shortly before the election, Logan had said that the petitioner "might" be able to purchase the authorization cards if the Union lost the election. The Board's hearing officer did not credit this testimony. In our view, the Board's credibility determination was manifestly correct. Kilgore's testimony was uncorroborated and was inconsistent with the testimony of several other witnesses. ⁵ We believe that substantial evidence supports the Board's finding that Logan did not perpetuate the rumor.

With regard to Walsh, the Board concluded that she had repeated the rumor to other employees, but that the Union could not be held responsible for Walsh's remarks because she was not an agent of the Union. The petitioner attacks the latter finding, arguing that Walsh must be treated as an agent of the Union because of her position with the organizing committee. ⁶ It relies upon several cases which have held the union responsible for the conduct of employees who were not members or paid agents of the union. E.g., P.P.G. Industries, Inc. v. NLRB, 671 F.2d 817 (4th Cir.1982); NLRB v. Georgetown Dress Corp., 537 F.2d 1239 (4th Cir.1976); NLRB v. Urban Telephone Co., 499 F.2d 239 (7th Cir.1974).

Generally, a union is not responsible for the acts of an employee, unless the employee is an agent of the union. See, e.g., NLRB v. Georgetown Dress Corp., 537 F.2d 1239, 1244 (4th Cir.1976). To determine whether an employee such as Walsh is an agent of a union, the question must be analyzed within the framework of common law agency principles. NLRB v. Local # 64, Falls City Council, 497 F.2d 1335, 1336 (6th Cir.1974). Common law principles of agency, however, are not to be rigidly applied. 29 U.S.C. Sec. 152(13); Worley Mills, Inc. v. NLRB, 685 F.2d 362, 366 n. 2 (10th Cir.1982). The question whether an employee is an agent is a question of fact, id. at 366; the party seeking to prove that an employee is a union agent must show that the union "instigated, authorized, solicited, ratified, condoned or adopted" the employee's actions or statements. NLRB v. Miramar of California, 601 F.2d 422, 425 (9th Cir.1979). See Worley Mills, Inc. v. NLRB, 685 F.2d at 366. An employee's conduct may also be attributed to the union if the objector can demonstrate that the union has clothed the employee with apparent authority to act on behalf of the union. E.g. NLRB v. Advanced Systems, Inc., 681 F.2d 570, 576 (9th Cir.1982); NLRB v. Georgetown Dress Corp., 537 F.2d 1239, 1244 (4th Cir.1976) ("we think that the union is chargeable with the misdeeds under the principle of apparent authority."). See NLRB v. Urban Telephone Corp., 499 F.2d 239, 243-44 (7th Cir.1974) (Employees conduct was attributable to the union "because of his close connection with the union and the union's failure to repudiate his threats"). At the minimum, the party seeking to hold the Union responsible for an employee's conduct based upon the theory of apparent authority must show that the union cloaked the employee with sufficient authority to create a perception among the rank-and-file that the employee acts on behalf of the union, e.g., NLRB v. Georgetown Dress Corp., 537 F.2d at 1244; NLRB v. Urban Telephone, 499 F.2d at 244, and that the union did not disavow or repudiate the employee's statements or actions. NLRB v. Advanced Systems, Inc., 681 F.2d at 576; NLRB v. Georgetown Dress Corp., 537 F.2d at 1244; NLRB v. Urban Telephone, 499 F.2d at 244.

In light of these principles, we believe that substantial evidence supports the Board's finding that Walsh's conduct may not be attributed to the Union. The evidence clearly indicates that Walsh held no formal position with the Union. Thus, if the Union is to be held responsible for Walsh's actions, the Petitioner must show that Walsh appeared to speak on behalf of the Union, and that the Union failed to repudiate Walsh's statements. The credited evidence, however, does not support such a theory. Although the evidence indicates that Walsh was clothed with some authority to act on behalf of the Union, ⁷ substantial evidence supports a conclusion that the Union disavowed the rumor. ⁸...