Pierce Corp.

PIERCE CORP. 97 Pierce Corporation and Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers Local Lodge No. 401, AFL-CIO, Petitioner. Case 36-RC-4500 March 18, 1988 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON The National Labor Relations Board, by a three- member panel, has considered objections to an election held September 3, 1981, and the hearing officer's report recommending disposition of them. The election was conducted pursuant to a Stipulat- ed Election Agreement. The tally shows 38 for and 32 against the Petitioner, with 3 challenged ballots, an insufficient number 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, 2 and fmds that a certification of representative should be issued. 1. We note that, subsequent to the issuance of the hearing officer's report, the Board in Midland National Life Insurance Co., 263 NLRB 127 (1982), overruled its decisions in General Knit of California, 239 NLRB 619 (1978), and Hollywood Ceramics Co., 140 NLRB 221 (1962), on which the hearing officer relied in overruling the Employer's Objec- tions 1 through 3 involving alleged misrepresenta- tions. The Board held in Midland National, above at 133, that it "will no longer probe into the truth or falsity of the parties' campaign statements, and that [it] will not set elections aside on the basis of misleading campaign statements," unless forged documents have been used that "render the voters unable to recognize propaganda for what it is." Be- cause the alleged misrepresentations in this case clearly do not fall within Midland's forged docu- ment exception, we adopt the hearing officer's rec- ommendation that the Employer's Objections 1 through 3 be overruled.3 2. Additionally, in finding no merit to the Em- ployer's Objections 4 and 5, we agree with the hearing officer that employee Richard Miller Was not a general agent of the Union, for the reasons '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 1359, 1361 (1957). We have carefully examined the record and find no basis for reversing the findings. 2 In the absence of exceptions, we adopt, pro forma, the hearing offi- cer's recommendation that the Employer's Objection 6 be overruled. 3 At fn. 24 of Midland National, above, the Board held that the deci- sion would be applied retroactively to all pending cases. set forth in the attached portions of the hearing of- ficer's report. In so doing, we note that the nature of Miller's union activity is similar to that of the al- leged agents in United Builders .Supply Co., 287 NLRB 1364 (1988), and Vernon Auto Parts - Ex- change, 287 NLRB 168 (1987), and that, as in those cases, we find the alleged agent's union involve- ment less significant in degree and kind than that of the employees found to be general agents in Bio- Medical Applications of Puerto Rico, 269 NLRB 827 (1984), and Bristol Textile Co., 277 NLRB 1637 (1986). Although we note that here Miller was a member of an in-plant organizing committee—and even one of the more active members—his commit- tee membership and participation do not alter our conclusion. Rather, Miller's membership on the committee must be viewed in the context of the nature of that committee and how it was held out to employees, the totality of Miller's conduct, and the extent of his identification with the Union. In this regard, among those relevant facts found by the hearing officer, we note particularly that Miller was one of a total of 22 employees on the commit- tee in a unit of approximately 75 employees, and that the Union's campaign was punctuated by the frequent and regular presence of an individual ex- pressly identified as the Union's representative. Thus, we agree with the hearing officer that the facts of this case are insufficient to support a con- clusion that Miller was a general agent of the union whose profanities and remarks to fellow employees as he walked back to the parking lot along the line of voters could reasonably be taken as the action of the Union. See also NLRB v. Herbert Halperin Dis- tributing Corp., 826 F.2d 287 (4th Cir. 1987). CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers Local Lodge No. 401, AFL-CIO and that it is the exclu- sive collective-bargaining representative of the em- ployees in the following appropriate unit: All production and maintenance employees of the Employer at 10 N. Garfield Street, Eugene, Oregon, excluding office clerical em- ployees, guards and supervisors as defined in the Act. MEMBER JOHANSEN, dissenting. In accordance with my dissent in United Builders Supply, 287 NLRB 1364 (1988), I would set aside the election. Contrary to my colleagues, I find that Richard Miller was a general agent of the Union._ 288 NLRB No. 15 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Therefore, his 5 to 7 minutes of conversation with employees waiting in line to vote on September 3, 1981, was objectionable conduct under Milchem, Inc., 170 NLRB 362 (1968). Miller was 1 of the 10 original members of the in-plant committee. He was one of three employee- organizers who were regarded by their fellow em- ployees as someone "to contact about the Union, and campaign issues." Miller handed out a union meeting notice and was in direct contact with Errol Anderson, Local 401's organizer. On one oc- casion, Miller accompanied Anderson to the print- ers. During the campaign, Miller solicited union cards, informed employees about meetings, provid- ed union officials with information for campaign literature, and answered questions from other unit employees. The Petitioner did not disassociate itself from Miller nor did it repudiate Miller's exercise of au- thority. I would direct a second election. APPENDIX Objections Nos. 4 and 5. I. The Facts The following facts are not in dispute: In late July, employee Craig Wells telephoned the Eugene Local of the Boilermakers, Lodge Number 401 (referred to herein as the Union or the Petitioner), and expressed the interest of Pierce Corporation employees in Union representation. On July 29, employees Wells, Don Davis and Richard Miller met with an organizer from a Local 104, Seattle, Errol Anderson. (Later in the campaign Anderson forsook this dual capacity to become the International Representative). Between this initial meeting and the date of the election, there were seven additional union meetings; the place of the meetings was either union premises or Anderson's suite at a local motel. The first of these meetings occurred on August 5 and was attended by approximately 20 employees. The Union officials presiding over the meeting were Anderson, Lee Franklin of the International, and Ray Heike, business manager of the Petitioner. During this meeting Anderson passed out business cards, authorization cards and Union literature. He asked for employees to volunteer to become members of the in-plant organizing committee, explaining that committee members would be those em- ployees who would be willing to take a more overt stand for the Union and that such employees would be his "eyes and ears" inside the plant. He said also that the Employer would be advised of those who volunteered to become members of the in-plant committee. Ten employ- ees volunteered for the committee and elected Craig Wells to be the chairman. These employees received committee buttons and were given Union authorization cards for distribution to other employees at the plant. The following day, Anderson sent a telegram33 to the Employer's general manager, Dan Giustina, naming the in-plant committee members as: Craig Wells, Richard Miller, Bob Hansen, Don Ericson, John Ott, Donald R. Davis, DeWain Gurule, Kraig Walsh, Dave Jarrett and Glenn Babcock. Of this group, and among all those em- ployees who subsequently became members of the in- plant committee, Miller, Wells and Ott became generally regarded as the individuals to contact for information about the Union, and campaign issues. At a date uncer- tain, but subsequent to the first general meeting, Ander- son told Wells particularly that he was Anderson's "eyes and ears" in the plant. The petition was filed on August 10. The second gen- eral union meeting took place on August 12 and was at- tended by 40 employees approximately. Anderson chaired this meeting and passed out material similar to that passed out in the first meeting including authoriza- tion cards and business cards. At this meeting Anderson again invited employees to join the 1PC and advised them that the only qualification was the willingness to take a public stand for the Union. The following day, August 13, the Employer was noti- fied by telegram34 that employees Jean Brush, David Walker, Sonnie Reed and Mike Foley had joined the IPC. On August 18, 15 or 16 employees attended another union meeting called by Anderson. Literature was passed out again at this meeting and more employees joined the IPC. By telegram dated August 19, 35 the Petitioner advised the Employer that employees Ralph Cook, Anthony Po- merleau, Mark Saunders and Greg Saith had joined the IPC. Also on August 19 Union officials Anderson and Heike passed out coffee and doughnuts near the plant to employees who were coming in to work. A union meet- ing was held that evening and was attended by approxi- mately 20 employees. The next general meeting was called by the Union for August 24. This was attended by "a room full" of em- ployees. The following day, August 25, Anderson and Heike again passed out coffee and doughnuts near the plant to employees who were coming to work. On August 31, Anderson advised the Employer tele- graphically" that four additional employees had become members of the IPC. These employees were Ron Gan- ieany, Bill Torrey, Larry Rose, and Lowell Olson. This brought the total number of employees on the committee to 22. On September 1, another Union meeting was held. Ten to fifteen employees attended this meeting, during which Anderson attempted to answer questions about the Employer's financial condition. The final pre-election Union meeting was held on the evening of September 2, the night before the election, and was attended by ap- 33 Employer's exhibit 1. 34 Petitioner's exhibit 5 35 Petitioner's exhibit 11 36 Petitioner's exhibit 8. PIERCE CORP. 99 proximately a dozen employees. The Company's finan- cial position was discussed at this meeting also. Among the employees, the Union organizational activ- ity was engaged in mainly by Wells, Miller and Ott. However, no employee was expressly designated by An- derson or any other Union official to act as an agent of the Petitioner. No employee was compensated monetari- ly for any activity performed in behalf of the Union. In addition to the organizational activity 37 engaged in mainly by Wells, Miller and Ott, each of them engaged in certain activities exclusively or uniquely. Craig Wells was chairman of the IPC, was introduced at meetings as the chairman, was directly in contact with Anderson, served as election observer for the Union, posted notices on the Employer's bulletin board, re- ceived copies of all Union publications, picked up the doughnuts for the coffee and doughnut gatherings, and sat at the table with Anderson during part of one meet- ing. J. John Ott, in addition to his membership on the IPC, kept union literature at his desk in the plant, was often asked questions about the pension plan and, thus, distrib- uted pension plan booklets, spoke to employees Marion Strunk and to Anderson in Strunk's behalf about the pen- sion plan. Richard Miller, in addition to his membership on the IPC, handed out one union meeting notice, was directly in contact with Anderson, and accompanied Anderson to the printers on at least one occasion. On the day of the election, approximately five minutes before the polls opened, Ott was approached by employ- ee Jim Ware who asked him about the Employer's finan- cial status. Ott took a piece of paper out of his pocket38 and told Ware about the $14,000,000. This incident oc- curred just outside the office of supervisor Hayes. Wells, of course, was the Union's observer and was in the em- ployees' lunchroom where the polling was to take place. Miller was one of the first employees in the voting line. As Cornelison, one of the Employer's observers, looked at Miller through the lunchroom door just before the polls opened, Miller uttered an obscenity at him. After Miller voted and was walking along the line of voters to- wards the rear parking lot, employee Potter yelled to him to knock off his "talking and lying." Miller yelled "fuck you" back at Potter. On his way out he spoke to two employees who were not in line, Joan Brush and Don Davis, and to employees who were in the line in- cluding Molly Custer. This activity lasted from 5-7 min- utes. The polls were open from 3:30 to 4:45 P.M. but 37 Among the activities performed by or in the interest of all of them, individually or severally, were. (1) serving as IPC members, (2) advising employees of Union meetings, (3) helping plan the coffee and doughnut gatherings, (4) handing out Union literature, (5) providing Anderson with information for the preparation of Union handouts, (6) telling employees about the $14,000,000, (7) fielding questions from employees, (8) being identified at meetings as IPC members, (9) passing out and/or collecting Union authorization cards and (10) wearing Union and/or IPC insignia. 38 As stated in the discussion of Objections I, 2 and 3, I credit Ware's testimony that there was a piece of paper involved in this incident be- cause those employees, including Ware, who made the claim were not at the Union meeting when Ott obtained it, yet their descriptions of the paper are nearly identical to Ott's description. most of those who voted cast their ballots in the first 15- 20 minutes of the voting period. II. Positions of the Parties By these objections the Employer contends, in effect, that Union "representatives and agents", in the polling area while the polls were open, engaged in electioneer- ing, uttered obscenities against observers and other em- ployees, and made material misrepresentations. The Employer would find that Wells, Ott and Miller were agents of the Union on account of (1) the unavail- ability of International Representative Anderson or any other paid union official, (2) Anderson's metaphorical and other instructions to Wells, Ott and Miller, (3) their membership in the IPC, particularly Wells' chairmanship, (4) their activity on behalf of the Union, and (5) their ap- parent and/or claimed authority, as employees perceived it. In asserting that the misconduct alleged by these ob- jections warrants the setting aside of the election, the Employer relies essentially on the Hollywood Ceramics criteria. With respect to the electioneering activity the Em- ployer contends that (1) Union agent Miller spent seven minutes in and around the polling line after he had voted, conversing with employees, (2) Union agent Ott, while employees were waiting in line to vote, showed at least one employee a paper which contained material misrepresentations about the Employer's financial status and (3) that these activities were perpetrated in an atmos- phere "not conducive to individual reflection and final deliberation", referring to other conversational activity in the voting line on the part of those waiting to vote." The Petitioner argues that agency cannot be found under the circumstances of the instant case in consider- ation of recent precedent, that absent an "agency nexus", Miller's activity in the polling area cannot be considered "electioneering" under the Milchem rule, and that Ott's conversation with Ware took place outside the polling area. III. Analysis and Recommendation A. The Agency Issue As a general principle, "agent" status will attach to any individual when conferred by proper authority ex- pressly, implicitly or apparently, 4° regardless or "wheth- 39 The Employer intimated gratuitously that the Board Agent was re- sponsible for the disorderly atmosphere by having "all employees. . . in line at the same time" instead of utilizing a "station by station or depart- ment by department voting procedure." No objections were filed over Board Agent conduct, however. Furthermore, the Employer offered no evidence that a procedure of this sort had been suggested by any party prior to the election or that information was disclosed that should have aroused the concern of the Board Agent in this regard. 49 NLRB v. Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, (New York Telephone Company), 467 F.2d 1156; International Brotherhood of Teamsters General Drivers and Helpers Local Union No. 886 (Lee Way Motor Freight, Inc.), 229 NLRB 832, Local Union No 3, International Brotherhood of Electrical Workers AFL-CIO, (Western Electric Company), 141 NLRB 888, and cited therein. See also Carroll Contracting and Ready-Mix Inc., 247 NLRB No. 95. 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er the specific acts performed were actually authorized or subsequently ratified"' so long as it appears that the agent was acting in his capacity as such 42 within the general area of his authority.43 In the context of an organizing campaign, an agency relationship will not be found solely because of member- ship in the organizing-committee even if the individual involved is the only "employee union advocate" other employees were aware of. 44 Nor will agency be found merely because "employees prominent in the Union's or- ganizing campaign may have engaged in unlawful con- duct, without more"45 absent a showing of special cir- cumstances46, and especially where a large percentage of employees joined the IPC,47 or where the union had no knowledge of the activity." I find it unnecessary to make a determination on the agency issue with respect to Wells and Ott for several reasons. Wells was an election observer and no election- eering or misrepresentation conduct during the time the polls were open has been alleged to him Other acts al- 41 Section 2(13), NLRA, as amended 42 Local 760, International Brotherhood of Electrical Workers, A.F. of L., (Roane-Anderson Company), 82. NLRB 696 43 International Longshoremen's and Warehousemen's Union, CL 0., Local 6 (Sunset Line and Twine Company), 79 NLRB 1487, which set forth some basic collateral tenets Including: 1. The burden of proof is on the party asserting an agency relation- ship, both as to the existence of the relationship and as to the nature and extent of the agent's authority . to prove, not only that the acts . . were committed, but also that those acts were committed by agents . . . acting in their representative capacity . . 2 Agency is a contractual relationship, deriving from the mutual consent of principal and agent that the agent shall act for the princi- pal But the principal's consent, technically called authorization or ratification, may be manifested by conduct, sometimes even passive acquiescence as well as by words. Authority to act as agent in a given manner will be imphed whenever the conduct of the principal is such as to show that he actually intended to confer that authority. 3. A principal may be responsible for the act of his agent within the scope of the agent's general authority, or the "scope of his employ- ment" if the agent is a servant, even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted. 44 Tennessee Plastics, Inc , 215 NLRB 315 at 318, 319. See also Liberty Nursing Home, Inc. d/b/a Liberty House Nursing Home, 236 NLRB 456. 45 Owens-Corning Fiberglas Corp., 179 NLRB 219. 46 Bufkor-Pelzner Division, Inc , 197 NLRB 950, in which the Board de- scribed "special circumstances" in distinguishing the facts before them . . .in International Woodworkers of America, AFL-CIO (Central Veneer, Incorporated), 131 NLRB 189, the individual found to be an agent of the union was not employed by the employer but was an outsider to the employees, in Hampton Merchants Association, 151 NLRB 1307, the union selected an individual as its agent to solicit membership and, aware of his activities, did not repudiate or dis- avow them, and in Local 340, International Brotherhood of Operative Potters, AFL-CIO (Macomb Pottery Company), 175 NLRB 756, the individual found to be an agent was the prime contact between union officials and employees in a town where the union had no base of operations and which its officials seldom visited . . "; International Ladies' Garment Workers' Union, AFL-CIO (Georgetown Dress Corpo- ration), 214 NLRB 706, enforcement demed on the agency issue 537 F. 2d 1239 (C A 4, 1976). The Court's holding in Georgetown Dress is discussed and chstmguished infra 47 Firestone Steel Products Company, a Division of Firestone Tire and Rubber Company, 235 NLRB 548, wherein it was shown that "123 em- ployees out of a unit numbering approximately 425 persons had been made members of the in-plant committee" 48 The Cambridge Wire Cloth Company, Inc. 256 NLRB No. 178 leged to Wells have been examined elsewhere in this report. The only misconduct alleged to Ott by objections 4 & 5 has also been examined elsewhere in this report and need not be examined anew because its disposition was not based upon a failure to show agency. 46 Thus, even if Wells and Ott did claim, as Cornelison alleges," that they "were representing the Union," it would be of no additional consequence. With respect to Richard Miller I am not persuaded by the evidence or arguments that he was an agent of the Union. 51 The election campaign ran from July 29 to September 3 inclusively, a period of thirty-seven days. During the time, Errol Anderson of the Union conduct- ed seven union meetings 52 (discounting the initial or July 29 meeting) and two coffee gatherings 53 for an average of about one event every 4 days. Furthermore, during the brief intervals of Anderson's absence, Ray Heike of the Eugene Local was available. Whether employees sought him out or not is immaterial. Nevertheless, the record shows that he did receive collected authorization cards54 and did take telephone Messages from employees for Anderson. 55 I conclude from these facts that the 45 See Analysis and Recommendation, Objections Nos. 1, 2 and 3. 5° Transcript p. 279-80 57 The agents in United Mine Workers of America (Terry Elkhorn Mining Company, Inc., 163 NLRB 567, which the Employer cites in sup- port of Objections 4 & 5, were so found by the Trial Examiner primarily because they were paid field representatives of the Respondent Miller was not in the employ of the Union nor was he compensated by the Union in any way. Local 340, International Brotherhood of Operative Potters, AFL-CIO, et al (Macomb Pottety Co.), 175 NLRB 756, is distinguishable because the finding of agency was premised on the facts that contacts by the Union were rare and then only with a few select employees, the Union had no local base of operations, had never created a "formal and publicized or- ganizing committee of workers", nor visited the plant. None of these con- ditions are in evidence with respect to the Pierce campaign. Contrary to the evidence upon which the agency finding was based in Pastoor Bros. Co. (sic), 223 NLRB 451, the IPC members at Pierce never authored and/or signed union handouts, nor assumed the floor and spoke at union meetings The Court in NLRB v. Georgetown Dress Corp., 92 LRRM 3284 denied enforcement because it found, contrary to the ALL that members of the In-Plant Organizing Committee were agents of the Union under the prin- ciple of apparent authority This conclusion was based on many factors present in Pierce but the basic premise cited by the Court was that the committee was the only (Court's emphasis) in-plant contact with the workers In Pierce the evidence discloses that non-committee members engaged in in-plant contact with other employees, particularly Sonnie Reed who only joined the IPC later in the campaign. Also, IPC members in Pierce were not mstructed to visit employees homes, nor told that they'd be totally responsible for organizing the plant Furthermore the committee in Georgetown engaged in egregious mis- conduct of which, the Court presumed, the Union had knowledge or should have entertained the possibility In Pierce there was no egregious misconduct nor reason to presume that the Union, which made no whole- sale delegation of authority as in Georgetown, should have known of the IPC's excesses. Georgetown was distinguished on a similar basis in Cam- bridge Wire Cloth, supra. The Board's Georgetown decision, concurring in the finding of no agency, is reported at 214 NLRB 706 Finally, the Employer did not show that the Pierce campaign was ex- emplified by "special circumstances" as set forth in footnote 46, supra. 53 August 5, 12, 18, 19, 24; September 1 and 2 53 August 19 and 25. 54 Transcript p. 586 55 Transcript p 634. PIERCE CORP. 101 campaign was punctuated by the frequent and regular presence of the Union. Conversely, it is clear that em- ployees were not left on their own to conduct the cam- paign. During the union meetings, in addition to advising Miller and other employees about campaign tactics, An- derson gave them explicit instructions on their status and conduct. This testimony is unrefuted and includes, in part, the following remarks: (1)". . . [I told them] . . . I'm going to be the coach . . . and you're going to be my team. I'm going to call the shots and the plays, and you're going to run with the ball and score. You can be a winner, but I'm going to call the shots. I made it very clear in the very beginning that if there was any shot called, I would call the shots."56 (2) On in-plant organizing committee, "I explained to them, I needed firm commitments from people in the plant. I needed people in there that was not afraid to take a stand on the boss, that wasn't scared of him, he couldn't intimidate them . . . I asked them if there was anybody in the room that would take this stand. . ." and ". . . that I could use their name on a telegram notifying the company. . . that these people, indeed, stood up to them and were not afraid."57 (3) On in-plant committee qualifications, ". . . those that would qualify to be committee people . . . would be those that weren't afraid to take a stand on an issue and to be my eyes and ears in there to get the needed information to carry on a successful campaign for them."58 (4) At every meeting ". . . (I told them) . . . I didn't want them putting out any literature, answer any questions, or whatever, unless I was conferred with. They was to do nothing on their own 1959 . . . . It is conceded that Miller did not follow these instruc- tions to the letter but it is quite clear that there was no express delegation of agency by Anderson to Miller.6° To suggest Anderson ratified defiance of his instructions and thus conferred agency begs the question. The only evidence offered to support this contention is that An- derson was aware that employees felt "someone was lying", and that he knew committee members were an- swering questions. In the former instance, as discussed in another section of this report61, the observation was made in the context of the confusion precipitated by the Employer having generated the $14,000,000 figure, the bar graph and the Coopers & Lybrand figures. In the latter instance, Anderson admitted that he knew ques- 56 Transcript p. 499. 57 Transcript p. 500-01. 58 Transcript p. 501. 59 Transcript p. 518. Employer's contention that this testimony was not corroborated by in-plant committee members does not comport with the testimony of Miller (Tr. p. 20), Wells (Tr. p 167), and Ott (Tr. p. 667). 68 NLRB v. Local Union No. 3, supra. Si See Analysis and Recommendation, Objections Nos. 1, 2 and 3. tions were being answered by Miller, among others, de- spite his instructions. However, Employer did not at- tempt to establish nor did Employer establish that An- derson knew that in some cases erroneous answers were being given. It is ludicrous to suggest that agency was conferred because the Union failed to correct misstate- ments of which it had no knowledge," or acquiesced in the practice of some of its supporters to engage in what it had no reason to believe was other than normal cam- paign dialogue, or did not, as a matter of practice, re- quire its supporters to recapitulate the litany of their con- versations on the issues at each and every encounter. Miller's membership on the IPC is not dispositive of the issue, even in consideration of all his activity." He was but one of twenty-two members in a proposed bar- gaining unit of about seventy-five employees. He does not appear to have been nearly as active as Wells or Ott, especially during the last weeks of the campaign, and never expressly claimed to "represent" the Union. Miller's role in the organizational campaign clearly parallels the role of employee Reece in Tennessee Plastics, Inc., supra, but to a lesser degree. Alleged agent Reece made the initial contact with the Union, obtained 75 to 90 signed authorization cards out of the 100 employees she solicited, wore three buttons, a T-shirt and carried a handbag, all with pro-union sentiments on them, was a member of the in-plant committee and as such contacted employees at home and at work urging them to attend meetings, rented meeting places for the union's business agent, spoke at union meetings, was appointed election observer (but did not serve) by the International Orga- nizer and was the chief in-plant supporter of the union. As in Pierce, the campaign involving Reece was con- ducted under the scrutiny and leadership of the Union. Reece, like Miller, was never paid for her activity, held no position in the International or the Local, and was not even a member of the Local. Also like Miller, Reece made some inaccurate statements that might have led some to believe she held more authority than the Union later claimed; for example, she told employees that she had earned a commission for her organizing activity; also, she threatened some employees with bodily harm on the day of the election if they didn't support the union. Despite all this, the Board concurred in the Judge's finding that Reece was not an agent of the union. Although Anderson was not constantly on the scene during the Pierce campaign, I find that his frequent visits to the area created a continuity of authority and control, on the part of the Union, of sufficient dimension to over- come any inference that the Union was not really in charge. In any event, it has not been shown that the Union relied on Miller as its principal contact with em- ployees." If anyone served this function it was Wells, whose status under Objections 4 & 5 is immaterial. I find that the Employer has failed to carry its burden of proof with respect to the allegation that Miller was an agent of the Union.65 82 Tennessee Plastics, Inc., supra. 63 Firestone Steel Products, supra. 84 Tennessee Plastics, Inc., supra. " International Longshoremen's and Warehousemen's Union, C.LO., Local 6 supra. 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Electioneering of Ott and Miller66 Responding to an inquiry by employee Ware, who had come over to talk to him, Ott pulled a piece of paper from his own pocket and told Ware about , the $14,000,000. Both Ott and Ware stated that this conver- sation took place about 5 minutes before the polls were open "by Carl Hayes offices". Although employees may have been in line to vote, Cornelison testified that just before the polls opened the line only extended "three- quarters of the way back to Carl Hayes' office" 67 thus Employer's contention that Ware was "waiting in. line to vote in the election that afternoon" 68 when Ott's elec- tioneering occurred is inconsistent with the corroborated testimony of one of its own witnesses. The Employer has offered no evidence to suggest that the "electioneering area" extended" beyond the voting place and the line of voters. Although Hayes' office area is visible from the lunchroom where the voting took place, so are the most distant parts of the plant. I would estimate that the distance between the furthest extent of the voting line and the location of Ware and Ott at 3:25 P.M. on September 3, was at least 30 feet; also Ware and Ott, were not on the plane of the voting line but were well off to one side. 7° Although several witnesses testi- fied that they saw Ware and Ott talking, no one but Ware and Ott testified that they heard what was said. To suggest that Ott "breached Ware's right to 'quiet moments of appropriate reflection' before casting his 66 Ott's polling area activity has already been discussed as to its "mis- representation" aspect. It is discussed below as to its "electioneering" aspect 67 Transcript p 282. 68 Employer's brief, p. 5 In this respect, I find Potter's testimony (Tr p 323) that Ware was in line to vote when Ott spoke with him inconsist- ent with that of the principals involved (Ware and Ott) and I do not credit his testimony in this regard. Nor is there evidence that Ware and Ott had two conversations during the time frame here 69 Observer Cornelison testified that Board Agent Roche designated the lunchroom and the line of voters as the non-electioneering areas when the polls opened. (Tr p. 282). Observer Renfro testified that the Board Agent designated only "inside the lunchroom" as the non-election- eering area (Tr. p 647) The authority to designate the area clearly rests with the Board Agent, Glacier Packing Co., Inc., 210 NLRB 571, 573. 70 See Employer's exhibit 5 for a diagram of the plant and the posi- tions of these individuals with respect to the line of voters. bailor" is to ignore the fact that Ware approached Ott. Also, the contention that "the effects of Ott's conversa- tion with Ware spread throughout the line" 72 is not sup- ported by evidence. Furthermore, the Employer has not cited authority for its position that electioneering can interfere with an elec- tion when carried out prior to the opening of the polls. The cases assume the polls are open." Therefore, I find that Ott did not engage in electioneering in this instance. The Employer argues that Miller's alleged electioneer- ing activity is cognizable only under the Milchem rule.74 Consistent with my finding that Miller was not an agent of the Union, I find that he did not engage in election- eering in the polling area." In consideration of the polling area activity generally, with respect to third party and rank-and-file employee conduct in particular, it has not been alleged nor does the evidence reveal that "the character of. . ,(any). . . conduct was so aggravated as to create a general atmos- phere of fear and reprisal rendering a choice of free ex- pression impossible.76 RECOMMENDATION In consideration of the foregoing, I recommend that Objections Nos. 4 and 5 be overruled. " Employer's brief, p. 37. 72 Employer's brief, p 37. 73 Clausson Baking Company, 134 NLRB 111; Star Expansion Industries Corporation, 170 NLRB 364; Glacier Packing Co., Inc., supra; William Pas- roar and Ray Pastoor, a Co-Partnership d/b/a Pastoor Bros. Company, 223 NLRB 451 74 Employer stipulated at the hearing that it was not contending that alleged Union agent Richard Miller engaged in egregious third party conduct in the polling area. This stipulation was precipitated when IET- ployer took issue with Petitioner's attempt to elicit from witness Miller what he said to potential voters waiting in line outside the polling room after the polls had opened. The Employer contended that the Milchem rule was applicable to the issue (Milchem, Inc , 170 NLRB 362) (Tr p. 101-103) Based on this argument, the Hearing Officer sustained the Em- ployer's objection to the introduction of such evidence. In my opinion, the Milchem rule position of the Employer was implicit- ly embodied in its stipulation with respect to Miller's "polling" area ac- tivity. Therefore, an examination of Miller's election line activity is neces- sanly contingent upon my finding on the agency issue. 75 Mdchem, Inc., supra. 76 Central Photocolor Co., Inc., 195 NLRB 839; Allied Metal Hose Com- pany, Inc, 219 NLRB 1135, Aladdin Hotel Corp. d/b/a Aladdin Hotel, 229 NLRB 499