Chugach Alaska Fisheries, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 44 (N.L.R.B. 1989)

44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Chugach Alaska Fisheries , Inc. and Alaska Council,
International Longshoremen 's & Warehouse-
men's Union
Morpac, Inc. and Alaska Council, International
Longshoremen's & Warehousemen 's Union
North Pacific Processors and Alaska Council , Inter-
national Longshoremen 's & Warehousemen's
Union
St. Elias Ocean Products , Inc. and Alaska Council,
International Longshoremen 's & Warehouse-
men's Union. Cases 19-CA-14146, 19-CA-
14147, 19-CA-14148, and 19-CA-14149
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On January 21, 1983, Administrative Law Judge
Harold A. Kennedy issued the attached decision.
The General Counsel and Respondent Morpac,
Inc. (Morpac) filed exceptions and supporting
briefs, Respondents Chugach Alaska Fisheries, Inc.
(Chugach), Morpac, North Pacific Processors
(North Pacific), and St . Elias Ocean Products, Inc.
(St. Elias) (collectively the Respondents) filed a
brief in support of the judge's decision and an an-
swering brief, and the General Counsel filed cross-
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings and
conclusions only to the extent consistent with this
Decision and Order.
I. ACCESS
Alaska Council, International Longshoremen's &
Warehousemen 's Union (the Union) sought access
to the Respondents ' premises for organizing pur-
poses prior to a National Labor Relations Board
election conducted in 1981 . The complaint alleged
that the Respondents ' denial of access violated Sec-
' At the beginning of the hearing the General Counsel moved to
amend the complaint to add certain 8(a)(1) allegations . The judge denied
the motion , finding that the Respondent affected by the motion was enti-
tled to 10 days in which to file an amended answer under the Board's
Rules and Regulations Although a respondent is not necessarily entitled
to 10 days to file an amended answer in these circumstances , Sec. 102.23
of the Board 's Rules and Regulations provides that a respondent may, in
a case in which the complaint has been amended, amend its answer
"within such period as may be fixed by the administrative law judge."
Therefore, we find that the grant of 10 days in which to amend the
answer was within the judge's discretion, and we affirm his denial of the
General Counsel 's motion . In so doing we note that the General Counsel
declined to move to adjourn the hearing for 10 days.
tion 8(a)(1). The judge found that Respondents
Chugach, North Pacific, and St. Elias did not vio-
late the Act by denying access reasoning that the
Union had made insufficient efforts to gain access
to their employees by alternative means of commu-
nication. He found, however, that Respondent
Morpac did violate the Act by denying the Union
access to its premises because the Union had been
unable by diligent efforts through alternative means
of communication to gain access to its employees.
For the reasons stated here, we find that Respond-
ents North Pacific and St. Elias, in addition to Re-
spondent Morpac , violated Section 8(a)(1) by deny-
ing the Union access.
After the judge issued his decision in this case,
we set forth in Jean Country2 the analysis that we
would utilize in determining how to accommodate
the exercise of rights guaranteed by Section 7 with
a property owner's right to protect property from
uninvited intrusions . We concluded,
[I]n all access cases our essential concern will
be the degree of impairment of the Section 7
right if access should be denied , as it balances
against the degree of impairment of the prop-
erty right if access should be granted. We
view the consideration of the availability of
reasonably effective alternative means [of
access] as especially significant in this balanc-
ing process.3
In assessing the weight to be given property
rights, we may consider "the use to which the
property is put, the restrictions, if any, that are im-
posed on public access to the property , and the
property's relative size and openness."4
Factors . . . relevant to the consideration of a
Section 7 right in any given case include, but
are not limited to, the nature of the right, the
identity of the employer to which the right is
directly related (e.g., the employer with whom
a union has a primary dispute), the relationship
of the employer or other target to the proper-
ty to which access is sought, the identity of
the audience to which the communications
concerning the Section 7 right are directed,
and the manner in which the activity related
to that right is carried out. Factors that may
be relevant to the assessment of alternative
means include, but are not limited to, the de-
sirability of avoiding the enmeshment of neu-
trals in labor disputes, the safety of attempting
communications at alternative public sites, the
2 291 NLRB 11 (1988).
8 Id. at 14.
4 Id. at 13.
295 NLRB No. 8
CHUGACH ALASKA FISHERIES
burden and expense of nontrespassory commu-
nication alternatives, and most significantly,
the extent to which exclusive use of the non-
trespassory alternatives would dilute the effec-
tiveness of the message.5
The facts in this case are not in dispute. The Re-
spondents are fish canneries located at various
points along an approximately 2-mile stretch of wa-
terfront in the small town of Cordova, Alaska.
They operate up to 10 months a year with their
peak season between late June to mid-August. At
the hearing the parties agreed that all the cannery
workers employed in Cordova by the Respondents
except for certain employees represented by other
unions composed an appropriate unit.
During the peak season in 1981 the multiemploy-
er bargaining unit consisted of about 550 employ-
ees. About 135 employees permanently resided in
Cordova, a town of 2400 people. The remainder of
the employees are transients from the "Lower 48"
States, Vietnam, the Philippines, Peru, South
Africa, and Israel . Many of the employees are col-
lege students . The employees who do not reside in
Cordova live in bunkhouses , campers, and tents on
the respective company premises. During the peak
season the employees typically work 16 or 17
hours a day, 7 days a week. There are two 1-hour
meal breaks and several 15 minute coffeebreaks.
The Respondents serve soup and crackers during
the meal breaks , thus making it unnecessary for
employees to leave the premises during meal
breaks . Starting times are varied and time off is
usually unscheduled . In many cases employees
leave company premises only once or twice a week
to go to town to shop, bank, or go to the post
office, and in many instances they go by car. There
are cubbyhole mailboxes in the canneries , but some
employees receive their mail in town . There is a
weekly newspaper and local radio service . Televi-
sion is limited to a scanner service . It is very rainy
in Cordova in the summer . Sixty-four inches of
rain fell in August 1980 and continuous rain for
days is not unusual . The employees who lived on
the Respondents ' premises were permitted to have
social guests, but despite repeated requests by the
Union for access to employees on the Respondents'
premises during nonworking hours and in non-
working areas for the period before the 1981 elec-
tion, union organizers were not permitted on the
premises.
Concerning Respondent Chugach, only two em-
ployees in the unit the Union sought to organize
lived on the Employer's premises . The others ap-
parently lived in town. Employees of Chugach,
5 Id. at 13 (fn. omitted).
45
other than those whom the Union sought to orga-
nize, were represented by Local 37, ILWU, a Seat-
tle-based local of the International union with
which the Union in this case is affiliated. Both
Union President Larry Cotter and Organizer Emily
Van Bronkhorst testified that they were assisted in
their organizing efforts by Pedro Anton, the Local
37 shop steward at Chugach. Van Bronkhorst testi-
fied that she gave Anton leaflets to distribute. Chu-
gach Assistant Plant Manager George Anderson
testified that the Local 37 employees performed the
same type of work as unit employees , that from
time to time he observed Anton talking to unit em-
ployees, and that Anton was not restricted from
doing so in any way.
A. Bunkhouses and Campsites
Applying the analysis set forth in Jean Country
to the facts here, we note that the impairment to
the property rights asserted by the Respondents
with respect to access to the bunkhouses and em-
ployee campsites by nonemployees during employ-
ees' nonworking hours in nonworking areas must
be assessed in light of the reasonableness (or lack
thereof) of alternative means of reaching the sea-
sonal employees and the significant Section 7 orga-
nizing rights involved . Not only is organizing ac-
tivity a core Section 7 right, but we additionally
note in assessing this right that the Respondents are
owners of the property involved and there are thus
no neutral entities that might have become en-
meshed in the activity. The Union sought access to
this property during employees' nonworking hours.
The employees of the Respondents are the sole in-
tended audience.
In assessing the weight of the property right, we
note there is no evidence that the bunkhouses and
employee campsites are fenced or secured in any
way nor is there any evidence that work was per-
formed in employee living areas . Therefore, the
Respondents have not established any production
or safety concerns. Furthermore , social guests are
permitted in these areas . Thus, access to outsiders
is relatively unrestricted.
Alternative means of communication with these
employees are limited because of the long hours of
work, the unpredictability of when time off will be
scheduled, the shortness of the season , and the
transient nature of the work force ,6 and rainy con-
ditions in Cordova. We find that the degree of im-
pairment of the Section 7 right if access were
denied outweighs the degree of impairment of the
° As noted above , when not working for the Respondents a significant
percentage of the employees disperse to their homes in the "lower 48"
States, Vietnam, the Phillipmes, Peru , South Africa, and Israel
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
private property right if access should be granted
in view of the limited unavailability of reasonable
effective alternative means of communication. We
conclude that the Union is entitled to reasonable
access to the employee living areas at Respondents
Morpac, North Pacific, and St. Elias for the pur-
pose of organizing employees residing on the prem-
ises . We find that Respondents Morpac, North Pa-
cific, and St . Elias violated Section 8(a)(1) of the
Act by excluding union representatives from these
areas.
With respect to Respondent Chugach, however,
we find that the Union had reasonable alternative
means available to reach the employees. In our
view, the General Counsel has failed to show that
the regular presence on the Chugach premises of
Local 37 Steward Anton did not constitute a rea-
sonable alternative means of communicating the
Union 's message to the two unit employees residing
on Chugach's property. Thus, we note that the
union president and an organizer acknowledged
that Anton assisted in the campaign and was given
handbills to distribute to Chugach employees.
There is no evidence that Anton was unable to
communicate with the Chugach employees regard-
ing the organizational campaign . Therefore, we
shall dismiss the complaint concerning Respondent
Chugach.
B. Canneries
The Union also requested access to the canneries
themselves , albeit to the nonwork areas, for the
purpose of organizing . Concerning the nonwork
areas of the canneries, the evidence shows that all
but Respondent Morpac have cafeteria areas
housed within the canneries themselves but sepa-
rate from the actual production areas . Respondent
Morpac has two areas where soup is served, one of
which will hold only 30 of its 200 employees and
one of which is an area of its casing warehouse.
There is no dispute that the Respondents are en-
gaged in complicated processing operations necessi-
tating maintenance of production and safety. Be-
cause of this, public access to the canneries them-
selves has been tightly restricted. Because we have
decided to grant reasonable access to the Respond-
ents' employee living areas to allow the Union to
reach the employees residing on their property or
in the case of Chugach, the Union already effec-
tively has access to on-premises employees , we find
that adequate alternative means of communication
are available and the Section 7 organizing right
will suffer little impairment if we deny access to
the nonwork areas of the canneries.
Concerning the employees who live in Cordova,
there are effective alternative means of contacting
them . The resident employees are available to the
Union all year long , and during the nonpeak season
they work only part-time . Their addresses are on
the Excelsior list and telephone numbers would not
be difficult to ascertain . Cordova is a very small
town and the Union could visit employees at their
homes . Thus, we find that the Respondents did not
violate the Act by denying the Union access to the
canneries themselves . NLRB v. Babcock & Wilcox
Co., 351 U. S. 105, 113-114 (1956).
II. NO-SOLICITATION RULE
The judge found that Morpac violated Section
8(a)(1) of the Act by maintaining an overly broad
no-solicitation rule7 in that it prohibited solicitation
during the employees' "working time" without fur-
ther clarification. Since the judge rendered his de-
cision, the Board decided in Our Way, Inc.," to re-
verse its decision in T.R. W. Bearings9 relied on by
the judge and find that rules prohibiting solicitation
during "working time" are presumptively valid.
Therefore, we shall dismiss this allegation of the
complaint.
AMENDED CONCLUSIONS OF LAW
Substitute the following paragraph 3 for that of
the judge.
"3. Respondents Morpac, Inc., North Pacific
Processors , and St . Elias Ocean Products, Inc.
have interfered with , restrained , and coerced em-
ployees in violation of Section 8(a)(1) by denying
nonemployee organizers of the Union reasonable
access to the employee living areas on their respec-
tive properties for the purpose of communicating
with the employees quartered thereon on the em-
ployees' own time concerning organizational mat-
ters."
AMENDED REMEDY
Having found that Respondents Morpac, Inc.,
North Pacific Processors, and St . Elias Ocean
Products , Inc. have violated Section 8(a)(1) of the
Act, we shall order them to cease and desist there-
from and to take certain affirmative action that will
effectuate the policies of the Act.
We shall order Respondents Morpac, Inc., North
Pacific Processors , and St . Elias Ocean Products,
Inc. to permit nonemployee union organizers rea-
sonable access to the employees that reside on their
respective properties at their campsites or bunk-
houses on the employees ' own time for the purpose
7 The judge, apparently inadvertently, also included in his recommend-
ed Order a finding that Respondent Morpac promulgated an unlawful no-
distribution rule. However , there was no such allegation in the complaint.
8 268 NLRB 394 ( 1983).
9 257 NLRB 442 (1981)
CHUGACH ALASKA FISHERIES
of discussing organizational matters. The Union
will not be afforded the right of unlimited access to
the grounds of Respondents Morpac, Inc., North
Pacific Processors, and St. Elias Ocean Products,
Inc., nor access in such a way as to impede or
interfere with their business operations. According-
ly, the Order will not permit the Union to have
access to their grounds for any purpose other than
the limited purpose of going directly to and from
the living quarters of the employees who are quar-
tered on their grounds, in order to discuss and
transact organizational matters with them. The Re-
spondents will be permitted fairly and reasonably
to regulate the number of such union representa-
tives who may thus enter and visit at the same
time, and to impose reasonable limits on visiting
hours. See Raleigh Hotel, 191 NLRB 719 (1971),
and S & H Grossinger's Inc., 156 NLRB 233
(1965), enfd. in relevant part 372 F.2d 26 (2d Cir.
1967).
47
tices, on forms provided by the Regional Director
for Region 19, after being signed by each Respond-
ent's authorized representative, shall be posted by
each Respondent immediately upon receipt and
maintained for 60 consecutive days thereafter, in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by each Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER
The National Labor Relations Board orders that
the Respondents, Morpac, Inc., North Pacific
Processors, and St. Elias Ocean Products, Inc.,
Cordova, Alaska, their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Denying nonemployee union organizers rea-
sonable access to their respective Cordova, Alaska
properties for the purpose of communicating with
their employees who are quartered thereon at the
employees' quarters or campsites about organiza-
tional matters on the employees' own free time.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed in the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Permit nonemployee union representatives
access to their property to visit their employees
quartered thereon at reasonable times at the bunk-
houses or campsites on the employees' own time
for the purpose of discussing organizational mat-
ters; provided, however, that such access may be
fairly and reasonably regulated by the Respondents
as indicated in the "Amended Remedy" portion of
this Decision and Order.
(b) Post at their places of business in Cordova,
Alaska, copies of the respective attached notices
marked "Appendices A-C." 1 ° Copies of the no-
10 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT deny nonemployee union organiz-
ers reasonable access to our Cordova, Alaska prop-
erty for the purpose of communicating with those
of you who are quartered thereon at your quarters
or campsites about organizational matters on your
own time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL permit nonemployee union representa-
tives access to our property to visit those of you
quartered thereon at reasonable times at your bunk-
houses or campsites on your own time for the pur-
pose of discussing lawful organizational matters;
provided, however, that such access may be rea-
sonably regulated by us.
MORPAC, INC.
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT deny nonemployee union organiz-
ers reasonable access to our Cordova, Alaska prop-
erty for the purpose of communicating with those
of you who are quartered thereon at your quarters
or campsites about organizational matters on your
own time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL permit nonemployee union representa-
tives access to our property to visit those of you
quartered thereon at reasonable times at your bunk-
houses or campsites on your own time for the pur-
pose of discussing lawful organizational matters;
provided, however, that such access may be rea-
sonably regulated by us.
NORTH PACIFIC PROCESSORS
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT deny nonemployee union organiz-
ers reasonable access to our Cordova, Alaska prop-
erty for the purpose of communicating with those
of you who are quartered thereon at your quarters
or campsites about organizational matters on your
own time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL permit nonemployee union representa-
tives access to our property to visit those of you
quartered thereon at reasonable times at your bunk-
houses or campsites on your own time for the pur-
pose of discussing lawful organizational matters;
provided, however, that such access may be rea-
sonably regulated by us.
ST. ELIAS OCEAN PRODUCTS, INC.
R. Michael Smith , Esq., for the General Counsel.
Joseph L. Davis, Esq. and Christopher C. Evans, Esq., of
Seattle, Washington , for the Respondents.
Larry Cotter, of Juneau, Alaska, for the Charging Party.
DECISION
HAROLD A . KENNEDY, Administrative Law Judge.
The four Employer Respondents in these proceedings,
Chugach Alaska Fisheries, Inc. (Chugach ), Morpac, Inc.
(Morpac), North Pacific Processors (North Pacific), and
St. Elias Ocean Products , Inc. (St . Elias), separately own
and operate seafood processing and cannery facilities in
Cordova, Alaska.
The Charging Party, Alaska Council , International
Longshoremen 's & Warehousemen 's Union (the Union)
filed charges against each of the Respondents on Decem-
ber 8, 1981. Each of the Respondents is charged with
violating Section 8(a)(1) of the National Labor Relations
Act (the Act) by denying union organizers access to its
Cordova premises and maintaining unlawful "no-solicita-
tion" rules . In addition , Respondent St. Elias is charged
(par. 7) with interrogating applicants with respect to
their union sympathies , and Respondent Morpac is
charged (par. 8), "by its agent Miller," with telling, on
or about July 12, 1981, "designated employee organizer
Lisa Dennis that she could not discuss the Union
amongst her co-workers at any time during working
hours." In the present posture of the proceeding, after
trial and submission of briefs, I need only to determine
(a) the right of union access to the premises of the four
Respondents, (b) the legality of a no-solicitation policy
maintained and enforced by Morpac in 1981, and (c)
whether Jack Miller , vice president of operations and un-
CHUGACH ALASKA FISHERIES 49
disputed agent of Morpac , unlawfully restricted in-house
organizer Dennis' organizing activity as alleged.'
Paragraph 6 of the consolidated complaint , as issued
on February 26, 1982, alleged:
(a) On repeated occasions prior to the 1981 elec-
tion , including occasions within the six months prior
to the filing of the charges herein , and on a continu-
ing basis during that time, the Union , by oral and
written request made to Respondents ' agenda in-
cluding , inter alia , Miller and Poor, sought access
for its non-employees organizers to Respondents'
and each of Respondent 's premises for the purposes
of meeting and speaking with unit employees about
issues relating to the pending election.
(b) The access requested , as above set forth in
sub-paragraph (a), was uniformly denied by the
named agenda of Respondents and non -employee
union representatives were not permitted on the
premises of any of the four facilities involved for
the purpose of speaking with employees in the pre-
election context.
Paragraph 6 was amended by the Regional Director
on April 7, 1982, by adding the following subparagraph:
(c) The Union had no reasonable alternative
means, other than the access requested , as set forth
above in subparagraph 6(a), by which to effectively
meet and speak with unit employees about issues re-
lating to the pending election.
Paragraph 9 of the consolidated complaint, as amend-
ed by the Regional Director on June 24 , 1982, alleges:
(a) Subsequent to July 31, 1981, Respondents
continued to post and maintain "No Solicitation"
policies at their Cordova facilities , which policies,
though they advised employees that they could not
engage in solicitation for any purpose during
"working time," did not further define that term.
(b) Respondent Morpac had not continuously
posted or actively enforced a "No Solicitation"
policy prior to on or about July 13, 1981 . Morpac
promulgated such a policy on or about July 13,
1981 in direct response to union organizing activi-
ties then in progress , and discriminatorily applied
that policy to union organizing activity.
' The Regional Director for Region 19, acting for the General Coun-
sel, issued a consolidated complaint on February 26, 1982 The complaint
was amended by the Regional Director (by adding subpar . (c) to par. 6)
on March 7 , 1982, and again (by revising par. 9 ) on June 24, 1982. The
General Counsel's amendment of June 24 , 1982, put in issue the posting
of policy statements pertaining to solicitation by employees of all four
Respondents dung "work time" after July 31, 1981 However , there was
no evidence offered on this issue except as to Respondent Morpac and
the effect of the amendment as to that Respondent was not substantial.
Additional amendments were sought by the attorney for the General
Counsel at the trial, which began in Cordova , Alaska, on July 13, 1982,
and concluded there on July 16, 1982 The amendments proposed at the
hearing were denied as they had not been timely offered, and it was ap-
parent that the affected Respondent (North Pacific) was not prepared to
plead or defend against the new charges (G.C. Exhs . l(ff) and l(gg); Tr.
9-40 )
On July 31, 1981, the date referred to in amended
paragraph 9(a), the Board issued its decision in T.R. W.
Bearings, 257 NLRB 443 ( 1981), modifying its earlier
holding in Essex International , 211 NLRB 749 (1974)-
that "rules which prohibit solicitation and distribution
during 'working time' are presumptively valid , but that
rules prohibiting solicitation and distribution during
'working hours' are presumptively invalid"-and an-
nouncing a new holding:
... that rules prohibiting employees from engaging
in solicitation during "work time" or "working
time," without further clarification , are, like rules
prohibiting such activity during "working hours,"
presumptively invalid.
Paragraph 9, as it originally appeared in the General
Counsel 's consolidated complaint read:
(a) On or about July 13, 1981, Respondent
Morpac posted a "No Solicitation " policy at its
Cordova facility, which policy, though it advised
employees that they could not engage in solicitation
for any purpose during working time , did not fur-
ther define that term.
(b) The policy posted as above set forth in sub-
paragraph (a) had not previously been kept continu-
ously posted or actively in force, and was promul-
gated on July 13, 1981 in direct response to union
organizing activities then in progress such that its
enforcement was discriminatorily applied to union
organizing activity.
It is thus apparent that the Regional Director, by
amending paragraph 9 shortly before the trial, sought to
charge St. Elias, North Pacific, and Chugach, as well as
Morpac, with violating Section 8(a)(1) by maintaining
after the date of the T.R. W. decision no-solicitation poli-
cies that did not adequately explain "working time" as
required by such decision. As indicated above, only the
legality of Morpac's "no -solicitation" policy need be de-
cided on this record, however. The General Counsel's
late amendment of paragraph 9(a) of the complaint put in
issue posting policies of the three other Respondents, but
no evidence was offered in support of the allegation as to
them. a
Paragraph 10 alleges that Respondents' acts, as alleged
in paragraphs 6, 8, and 9 constituted unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) of the Act.
Background and Undisputed Matters
Jurisdiction is not in dispute . Chugach and St. Elias
are Alaska corporations, and North Pacific and Morpac
are Washington corporations . Each of the Respondents is
admittedly an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act. The Charg-
8 Counsel for Respondents argued at the hearing that the Regional Di-
rector's amendment of June 24, a little more than 2 weeks prior to the
start of the trial, was barred by Sec 10 (b) of the Act and prejudicial as it
sought to put in issue policies of Chugach , North Pacific , and St. Elias
not theretofore questioned.
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing Party, Alaska Council , International Longshoremen's
& Warehousemen's Union, is admittedly a labor organi-
zation.
The following individuals are admittedly statutory su-
pervisors and agents of the corporate Respondents: Jack
Miller , vice president of operations , Morpac; James
Poor, plant superintendent , St. Elias ; Mike Poor, plant
manager, St. Elias ; and George (Bobby) Anderson, vice
president , Chugach . The record also establishes that Ken
Roemhildt is the manager of the North Pacific facility.
In 1979 petitions were filed with the Board for an
election in a multiemployer unit comprised of produc-
tion, maintenance , loading , and unloading employees
working in Cordova.3
Elections were held pursuant to such petitions in 1979,
1980, and on July 21, 1981, the most recent one (G.C.
Exhs . 2-5). The parties agreed at the hearing that the
1979, 1980, and 1981 elections were set aside as stated by
Respondents ' counsel as follows:
... addressing paragraph 5, Respondents admit
that there were elections held in 1979 and 1980 and
those were set aside . I think , from the standpoint of
the record , those two elections were set aside be-
cause of Board agent conduct . And then addressing
the 1981 election it was set aside based on objec-
tionable conduct found to be used by the Respond-
ents.
The Alaska State District Council of Laborers, which
had filed RC petitions , participated in the 1979 election
but not thereafter . The parties agree on the composition
of an appropriate bargaining unit : all of the cannery
workers employed in Cordova by the four Respondent
Employers except for certain employees represented by
other unions, including nonresidents ("people from the
Lower 48") working for Chugach who had been "his-
torically" represented by ILWU 37 of Seattle , Washing-
ton.4 The parties agreed to the introduction into evi-
dence of a number of exhibits, including the following:
Joint Exhibit 1-A map of "Greater Cordova"
Joint Exhibit 2-An aerial photograph of Chu-
gach cannery
Joint Exhibit 3-An aerial photograph of St.
Elias, North Pacific and Morpac canneries.
A number of landmarks are indicated on Judge's Exhibit
1, including the four canneries in question ; Shelton Cove,
also known as "Hippie Cove," and "Morpac Heights"
where many of the cannery workers lived in tents; the
Cordova Post Office; and the union hall.
Cordova is a community of about 2400 persons and is
located on an inlet 150 air miles southwest of Anchor-
age. Cordova can be reached only by airplane or ferry.
The population increases to around 5000 in the summer
when salmon is harvested.
s Bayside Cold Storage was named as an employer in an RM petition,
and Chugach was not named as an employer in the RC petitions that
were filed
4In 1979, members of the Prince William Sound and Copper River
Cannery Workers Union merged with the ILWU.
As indicated on Judge's Exhibit 1, St. Elias and North
Pacific facilities are located on the waterfront within
four or five blocks of downtown Cordova. Morpac's fa-
cility is located on the waterfront approximately one-
quarter of a mile in a northeasterly direction from down-
town. The Chugach cannery is located on the waterfront
in the same direction approximately 2-1/2 miles from
downtown.
Typically St. Elias and North Pacific operate 10
months or so of the year processing (freezing and can-
ning) seafood , including salmon, crab , scallops, and her-
ring . Morpac processed herring, crab , and salmon in
1981, but for only part of the year. Chugach processed
some herring beginning in April 1981 , but its primary
product that year was salmon which it began processing
around May 17. Most salmon is caught and processed in
the summer months . Production in the Cordova canner-
ies is particularly high during a portion of this time
period , referred to variously as the "peak season ," "sein-
ing season" or as the "canning season ." The peak season
in 1981 was between June 25 and mid-August . During
the offpeak months, when red salmon and other seafood
are harvested , local residents are employed to do the
processing.
The bargaining unit in 1981 consisted of around 550 or
more employees. About 135 resided in Cordova area,
and the 400 plus remaining members were nonresident
transients who traveled to Cordova from various places,
including the "Lower 48," Vietnam , Philippine, Peru,
South Africa, and Israel, to obtain employment.5 A
number of transient workers do not speak English. Many
of the transient workers are college students . Persons
who have worked in prior years are usually given prefer-
ence, but as a general proposition most workers are not
hired until they appear at Respondents ' facilities in Cor-
dova shortly before the peak season begins.
Many of Respondents ' employees live on - company
premises . St. Elias had two bunkhouses , marked "WIS"
and "EB" on Judge's Exhibit 3 . In 1981, 94 lived in the
bunkhouses , and an additional 20 to 25 lived in tents or
trailers (or cars) on St . Elias ' property . (Plant Manager
Mike Poor said about 15 nonunit employees lived in the
bunkhouses in 1981 .) In 1981 North Pacific had one
bunkhouse (marked "BH" on J. Exh. 3) which provided
housing for 54; 15 to 20 or so other North Pacific em-
ployees lived in tents or trailers on that company 's prop-
erty . 6 Morpac had one bunkhouse (BH-3) which housed
40 employees in 1981; 6 other Morpac employees lived
in vans on Morpac property.
Employees living in bunkhouses are charged specified
amounts that cover the cost of meals as well as lodging.
Toilet and shower facilities are available to those living
in the bunkhouses but little in the way of recreation or
other facilities are furnished . Persons residing in the
bunkhouses may have guests visit them but generally not
5 The parties are in basic agreement about the size of the unit. Re-
spondents give the employment of each Respondent dung the peak
season as follows-St. Elias, 200; North Pacific, 156; Morpac, 150; and
Chugach, 55.
6 Another bunkhouse (BH-24), capable of housing about 24, was to be
available for use in 1982
CHUGACH ALASKA FISHERIES
union organizers . Letters or other printed matter mailed
to the workers are placed in pigeonhole boxes at cannery
facilities where they can be picked up.
Employees of all four Respondents work long hours-
as many as 16 hours or more a day , 7 days a week-
during the peak season.' The workers generally start
around 7 or 8 a .m., or earlier , and continue as late as 11
p.m., or later, depending on what jobs they performed.
There are usually two 1-hour mealbreaks-at noontime
(dinner) and evening (supper)-and three 15-minute cof-
feebreaks-one in the morning, one in the afternoon and
one after the evening "meal." Soup was provided by
each of the Respondents (except Chugach which provid-
ed meals) to its cannery workers at meal breaktimes
without charge.
Employees generally use much of their free time, in-
cluding breaktime , to sleep or rest . Occasionally they go
to town to the post office or run an errand."
The Union first requested access in April 1981 by
letter dated April 23, 1981 . The letter, addressed to John
McCormac , attorney for all four Respondents and signed
by Union President Larry Cotter , reads in part (G.C.
Exh. 19):
With this letter the ILWU Alaska Council requests
the right of reasonable access to employees em-
ployed by Chugach Alaska Fisheries , St. Elias
Ocean Products, Morpac, Inc., and North Pacific
Processors Inc., during non-working hours in non-
working areas in the above mentioned facilities.
This right of reasonable access will commence June
15 and extend until August 20, 1981.
Access was never granted to the Union by any of the
Respondents.9
On or about July 12, 1981, about the time that he
learned from the Union that Morpac employee Lisa
Dennis was a union "in-house" organizer, Jack Miller,
Morpac's vice president of operations , posted a no-solici-
tation rule which read (G.C. Exh. 21):
NON-SOLICITATION
It is the policy of MORPAC, Inc., not to allow
any non-employee to come upon our premises for
the purpose of any form of solicitation or distribu-
tion of literature . This policy is to restrain any third
parties or strangers from solicitating [sic] or hand-
ing out materials for such things as political, union,
charitable or other activities.
Employees may not distribute any form of litera-
ture or other materials in work areas at any time
whether the employee is on or off work. Employees
are also prohibited from "soliciting" for any cause
T Apparently the workers are exempt from the Fair Labor Standards
Act on the basis of the seasonal nature of the work. Chugach employees
worked shorter hours because, according to its vice president, of the
firm's better facilities.
8 There was evidence that employees had some short days or short
time between June 25 and July 21 (election day), but the amount of time
is disputed by the parties.
8 Cotter testified that he hand-delivered the letter to Attorney McCor-
mac and that he made numerous other requests for access by telephone
51
during their assigned working time or soliciting
other employees during their work time.'°
On March 27 , 1982, a revised rule was posted at the
Morpac's Cordova facility reading as follows (R. Exh.
7):
NON-SOLICITATION
It is the policy of our company not to allow any
nonemployee to come upon our premises for the
purpose of any form of solicitation or distribution of
literature . This policy is to restrain any third parties
or strangers from soliciting or handing out materials
for such things as political , union , charitable, or
other activities.
Employees are prohibited from distributing any
form of literature or other materials in their work
area . Employees are also prohibited from soliciting
for any cause during their assigned working time or
soliciting other employees during their assigned
working time . Of course , this prohibition does not
extend to your nonworking time such as your lunch
period or coffee break.
The Testimony
Eighteen witnesses testified , seven for the General
Counsel and eleven for the Respondents . A summary of
their testimony follows in the order of their appearance.
Herman Fleming testified that he worked for St. Elias
between June 25 and August 15, 1981, and lived in a tent
at "Morpac Heights ." He assumed Morpac owned the
land but had asked no one permission to stay there.
Fleming thought that his tent was about one-quarter of a
mile from the St . Elias facility and that he could walk
the distance in 12 to 15 minutes . He estimated the
number of people living on Morpac Heights in the
summer of 1981, all in tents, to be around 20.11
Fleming said he worked on the "case -up crew and in
the retort room" in 1981. He explained that a retort is a
machine used to pressure cook salmon ; cans come out of
the retorts , and the case-up crew works at the end of the
can line where there is a "machine which stacks them up
on the pallets for shipping."
Fleming described other job categories at St . Elias as
follows:
... There were people who worked up at the fish
tanks where fish are stored when they come in and
they are taken off of tenders . And there are slimers
who worked on the slime line gutting fish, and that
10 Miller said the rule had been composed by Attorney McCormac and
that it had been previously posted at the Morpac facility in Cordova
Dennis who had worked for Morpac in 1980 said however , that she first
saw it on July 12.
11 Fleming indicated that the number living at Morpac Heights fluctu-
ated Some persons were unemployed , and he thought about 15 had left
while he lived there Fleming thought that the majority of St Elias
workers lived in a bunkhouse on St Elias property , but on cross-exami-
nation he conceded that he did not really know how many worked at St.
Elias. Fleming worked for St. Elias in the summer of 1980, when he lived
in a motel , but he thought working conditions at St. Elias in 1980 and
1981 were much the same.
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sort of thing . And there are people who work on
the can line, which is a mostly automated sort of
thing which loads fish into cans and vacuum packs
them . And then there is the retort room where just
a couple of people oversee the cooking of fish in
the retorts . And then there's case-up, which is the
place where I worked , at the end of the line where
the cans are stacked on pallets in preparation for
shipping . And then there's also the egg room where
people work on salmon roe. And there's a whole
section devoted to just crab.
Fleming stated that these jobs were "very mentally ex-
hausting , and physically in the sense that you have to be
on your feet for a lot of the time ." During the peak
season (which he thought ran from around July 4 to
August 1, 1981) Fleming usually worked from 8 a.m.
until 1 or 1:30 a .m. Slimers started earlier, around 7 a.m.
he thought . He indicated that he and other workers gen-
erally went to their tents and slept as soon as they got
off work. '
St. Elias employees were furnished soup during the
two mealbreak periods in the "soup room ," where Flem-
ing ate, and in the cafeteria, located above the cannery.
Fleming said he would walk to town during a lunch
hour once or twice a week to get his mail at the post
office, buy groceries or do "things like that."
Fleming said there was no in-house organizer for the
Union at St. Elias . He said he went to one union meeting
before the 1981 election and talked with Union Official
Larry Cotter . Fleming said he was the only St. Elias em-
ployee at the meeting and that he later "relayed a lot of
information" to other employees. Fleming saw Cotter
"every once in awhile," telephoned him on occasion, and
acted as an observer for the Union at the election. 12
Fleming said he did not buy the weekly newspaper
published in Cordova and did not have access to a radio
or TV (although a TV was located in the cafeteria). He
did not think it was practical to hold a union meeting at
Morpac Heights . He recalled that it was cloudy and
rainy in Cordova in the summer of 1981 . 13eginning in
late July, after the election , he said it "poured for a
couple of weeks."
Fleming said he attended (arriving late) a company
preelection meeting held one morning in the work area
at the end of the can line. Startup of production was de-
layed that morning, and Fleming thought all employees
were required to attend.
On cross-examination Fleming acknowledged that he
could not recall seeing Cotter or other union representa-
tive in the morning on the way to work , a time when it
would have been daylight ; nor could he recall seeing
Cotter or other union representatives in the evening after
he got off work and went back to his tent . He also
agreed that St. Elias placed no restriction on employees
talking to each other during mealbreaks (starting at noon
and at 6 p.m.) and coffeebreaks (starting around 9:30
12 Fleming said he saw no notices of union meetings at the cannery but
knew other meetings were held. He recalled that there was an article
concerning the arrest of an ILWU official posted in a breakroom at St.
Elias. Flemipg indicated he did not volunteer to act as an in-house orga-
nizer or to pass out union literature.
a.m., 3 p .m. and 9 p.m.); also, that employees were not
restricted where they could go while on break . Fleming
also agreed that St. Elias employees had two successive
days off in early July 1981.13
Edward Diemer, who identified himself as the meteor-
ologist in charge of the forecast office in Anchorage, tes-
tified concerning weather conditions in Alaska generally
and in Cordova in particular . Diemer said:
The normal weather in June, July, and August for
Cordova or the North Gulf Coast is generally rainy.
The number of days of rainfall are a lot higher than
a lot of other places . The rain tends to be rather
steady anywhere along the coast as it is opposed to
shower. 14
Richard Randall, who said he was a State of Alaska
employee concerned with fisheries and environmental
conditions , testified that he had made daily recordings of
rain in Cordova since moving there in March 1980. He
had misplaced his records for 1981 but indicated that the
annual rainfall for that year was around 240 inches. Ap-
proximately 64 inches had fallen in August, he said. Ran-
dall thought there was more rainfall in Cordova than at
the nearby airport where a weather station was located.
Randall stated that continuous rain for 2 days or so was
not unusual in Cordova.
Lisa Dennis, who resided and attended college in Cali-
fornia during most of the year , worked for Morpac in
Cordova between July 6 and August 13, 1981, as an egg
(salmon roe) packer . She was an in-plant organizer for
the Union at Morpac that year and served as an observer
at the election . Dennis also worked at Morpac in the
summer of 1980, but, while sympathetic to the Union,
she was not involved in its activities. In 1981 she lived in
a tent on Morpac Heights, a few minute 's walk from the
Morpac cannery . She thought there were about 20 tents
pitched on that hill that summer . There were "hundreds"
of unemployed persons in Cordova in the summer of
1981, she said , and some of them lived at Morpac
Heights, along with other cannery workers . Dennis
stated that some Morpac workers lived on Morpac prem-
ises, either in a bunkhouse or in trailers. t s
Like Fleming , Dennis considered the work in the can-
nery to be mentally and physically exhausting . It was,
she said , "cold, wet and you stood all the time; it was
very boring and monotonous work." She said there was
"constant and torrential " rain in July 1981.
Dennis started work at 8 a .m., as most other Morpac
workers did, and worked until 1 :30 a.m . 7 days a week
13 On direct Fleming testified that there are short days "early in the
season" and that employees would be informed of it "a few hours before
we were given time off."
14 The General Counsel offered certain climatological documents in
evidence (G.C. Exhs . 36-39). Diemer pointed out that one document
(G C Exh. 36) shows that the average monthly precipitation in Cordova
for July to be 6.94 inches.
15 In 1980 Dennis lived in a tent in Hippie Cove, a 20-minute walk
from the Morpac facility and about a 35- or 40-minute walk from down-
town Cordova. Dennis remembered the conditions in Cordova in 1980
and 1981 as being about the same . Dennis estimated Morpac 's employees
at between 100 and 150, a third of whom being transient college students,
a third Filipinos, and a third "local people "
CHUGACH ALASKA FISHERIES 53
during the canning season . She thought she averaged 5
to 6 hours of sleep each day. She and other Morpac
workers, including those who drove , arrived just before
work was to begin . There was little opportunity for so-
cializing . "Everybody usually just went home and went
to bed" after work . She would use some of her free time
to shower and do laundry (which could be done on
Morpac property). About once a week Dennis would go
to town ("a 15 minute walk" each way) during a lunch
hour to get mail and possibly pick up groceries or eat a
meal. There were 15-minute coffeebreaks at 10 a.m., 3
p.m., and 9 p.m. (plus an additional half hour for those
working past midnight ). Mealbreaks , when soup and
crackers were served , were at noon and 5 p .m. Meal-
breaks were usually for an hour, but sometimes they
were limited to half an hour . t a Dennis said she could re-
member an occasion or two when production stopped
around 10 p.m. and only one short day before the elec-
tion . She said little notice was given of the latter, and
she attended a meeting of observers that day.
Dennis said she saw Union President Larry Cotter,
whom she knew "from 1980," a day or so after arriving
in Cordova on June 30 , 1981. She agreed to help Cotter
with the Union's organizing campaign if she "ever got
employed ." Dennis said she attended two union meetings
in 1981 before the election . One was an "informal" meet-
ing attended by about 12 persons , and the other was a
"formal" one. She said she posted a notice for the latter
one at Morpac and 4 of the 10 who attended were from
Morpac . (Dennis said she posted union literature in non-
production areas of the facility .) Dennis said she received
"mailings" from the Union that year . She picked up one
in her "pigeon -hole" mailbox in the Morpac office, and
the other mailing she picked up from a table in the
breakroom . There were mailings addressed to other em-
ployees, but she thought only 25 percent of the mailings
were picked up.
While working at Morpac Dennis would sometimes
communicate with the Union by amending messages to
its Cordova office through "friends who were still unem-
ployed" at that time . Cotter or his assistant , Emily Van
Bronkhorst , would thereafter contact her.
Dennis said she saw Cotter in the vicinity of the
Morpac facility two or so times , but saw Van Bronk-
horst there many times . t' Dennis estimated that she saw
Van Bronkhorst on 9 of the 15 days between July 6 and
21, the day of the election . She said she would watch for
Van Bronkhorst at breaktime to see if the latter was
there handing out union literature. Dennis stated that
she, Van Bronkhorst , and Lorna Bennie, another in-
house organizer at Morpac , would often meet during
16 Dennis indicated that Filipinos living in the Morpac bunkhouse
sometimes ate soup with other workers even though they were entitled
to meals , along with their lodging . Soup was served in a warehouse and
in a kitchen . Coffee and doughnuts were supplied at lunchtime . Employ-
ees were not restricted during breaks and were free to talk and move
around , even leave the premises
17 Dennis said she saw Cotter distribute literature one morning She
said she never saw Van Bronkhorst at Morpac Heights but indicated it
was not practical for union representatives to meet with people there.
She agreed on cross-examination that during the off months the Union
had not been in contact with her.
breaktime and sit together on a log situated near the road
in front of the Morpac facility.
Dennis said she met with Van Bronkhorst "several
times" on July 18 in front of the Morpac facility. Early
on that day, according to Dennis , Morpac Plant Manag-
er Jack Miller came to her in the egghouse where she
was working and told her that he had posted an article
that would be of interest to her . She said she later saw
posted , in three or four places, an article concerning the
arrest of a union official named Baruso . Dennis reported
the information to the Union , and Von. Bronkhorst told
her the Union would get back to her "with more specif-
ics."
On one occasion that morning, according to Dennis,
Miller came out in front of the Morpac facility where
she and Bennie were meeting with Van Bronkhorst on
the access road or driveway (near where it makes a "Y"
with the main road that runs from Cordova to Chugach)
and, pointing to a new "No Trespassing" sign ,18 directed
the three of them to "get across the road ." Miller indi-
cated, she said, that Morpac owned up to the middle of
the access road . Later on that day Dennis met with Van
Bronkhorst and Cotter in the same area, and Plant Man-
ager Miller came up to join them . Dennis said she took
delivery of some union "fliers" at that point and left to
return to the Morpac facility . She said she observed
Miller pointing to the sign and to the "boundaries of
what he considered his property."
Dennis also identified General Counsel 's Exhibit 40, a
9-page letter dated July 19, 1981, which she said was fur-
nished her and Bennie, the other in-house organizer at
Morpac, as a means of answering questions that Morpac
employees had about the Union . Also, on July 19 a 15-
minute company preelection meeting was held on
Morpac premises . Dennis said employees were required
to attend and Plant Manager Miller spoke to them. (She
said a similar company meeting was also held in 1980.)
Dennis also testified concerning an earlier conversa-
tion she had with Morpac Plant Manager Miller, on July
12, after he had been informed that she was an in-house
organizer . On that day, according to Dennis, Miller ap-
proached her before work started and asked her what
she was doing on behalf of the Union. She said she told
him that she was talking to people about the Union and
that he responded in part:
[T]he Union was like a third party and got in the
way between the workers and the Union [sic], and
that if there was a Union they wouldn't be able to
offer a 10% retroactive pay raise they had offered
the last two years . He said that I was not-that it
was company policy that I was not allowed to talk
to anybody about the Union on the company prop-
erty during working hours and that I could not dis-
tribute any literature, Union literature , on the com-
pany property . And I told him I thought the law
18 Dennis said she had previously seen a "private property" sign 10
feet or less "farther down the road ," but not a "No Trespas§" sign
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was different than company policy and he said it
wasn't. 19
Dennis said she told "everybody" at work what Miller
had said and also called the union office to tell "Larry or
Emily what Jack had said." Later, presumably the same
day, she received word from Van Bronkhorst that she
"was free to talk." She could not recall being advised by
the Union about the distribution of literature, but she
said she "still put it up" in "break areas and bath-
rooms."20
On the following day, July 13, Dennis said she learned
that a no-solicitation rule had been posted. Dennis said
she saw it (G.C. Exh. 21) posted that day ("upstairs out-
side the egg house") and that she had never seen it
before. Dennis made a handwritten copy of the no-solici-
tation rule for the Union.21
Emily Van Bronkhorst testified that she was sent to
Cordova by Local 37 on or about July 7, 1981, to help
ILWU's drive to organize the cannery workers.22 Van
Bronkhorst left Cordova a couple days after the election.
Van Bronkhorst said she "leafletted at Morpac, North
Pacific and St. Elias" for 8 or 9 days, usually in the
morning before production began. She said she was able
to distribute only about 15 leaflets at each plant due, at
least in part, to the fact that she was not allowed to go
on the premises of the canneries.23 She indicated that the
rainy weather and the (8 to 10) foreign languages that
the workers spoke also presented problems to the Union
19 On cross-examination Dennis agreed that she had testified approxi-
mately a year earlier in an R hearing that Miller had told her that she
..was not allowed to talk to any of the employees about the Union during
his time in the work area." She indicated that she drew no distinction
between the term "working time" and "working hours."
20 Dennis indicated she was secretive about posting of union literature
and stated that "it would be taken down again " Other notices were also
posted at that time , she said-newspaper clippings , photos, "cards with
things for sale."
21 Miller acknowledged that he spoke to Dennis before the shift began
on or about July 12 He said around that time he received a letter from
the Union advising him that Dennis was an in -house organizer . He said
he "immediately checked to see if our no solicitation policy was still
posted " Finding it was not , he "had new copies prepared and placed
throughout the plant ." With Dennis being an in-plant organizer he said
he knew she would be disseminating literature and discussing the Union
so he "told her to restrict her Union activities to her time and not to
interfere with the workers during the routing course of their duties."
Franco Descargar, a Morpac defense witness who had worked for
Morpac in 1979, 1980, and 1981 , said he did not recall seeing the no -solic-
itation rule (G.C Exh 21 ) prior to his testifying.
22 Van Bronkhorst said Local 37 also sent Glenn Suson for 2 weeks in
July 1981 to help Cotter organize the cannery workers in Cordova. She
identified Local 37 as a member of the Alaska District Council and indi-
cated it is referred to as a "cannery workers Local " She said its mem-
bers reside in California , Oregon , and various parts of the Northwest and
are dispatched through a hinng hall to various points in Alaska during
the salmon and crab canning seasons.
23 Van Bronkhorst acknowledged that workers could leave cannery
premises during their break periods but indicated that when they did they
went by her in an automobile (Van Bronkhorst thought Morpac was a
20-25 minute walk from downtown .) She agreed on cross-examination
that there was little or no effort to leaflet during evening breaks or after
employees stopped working. Van Bronkhorst said she went to Hippie
Cove once and Morpac Heights maybe twice. She said she did not leaflet
Chugach but had taken literature there for the union steward to distnb-
ute. Van Bronkhorst said she posted leaflets around Cordova.
in distributing its literature and communicating with
them.24
Van Bronkhorst referred to meetings that she had with
Morpac in-house organizer Dennis on the access road
near the Y in front of Morpac (marked "L" on ALJ
Exh. 3) on July 19, 1981. Van Bronkhorst generally cor-
roborated Dennis' prior testimony concerning Morpac
official Miller's discussion with them that morning-i.e.,
that he arrived on the scene and asked them to move
across the middle of the road "past the sign" where he
said the property line was located. Van Bronkhorst said
she thought the access road was public, but Miller
"made a specific point of saying that Morpac had pur-
chased this access road here up to this point [the middle
of the road] specifically to keep the Union people off."
Van Bronkhorst said she had leafleted three or four
times on the access road prior to that date without inter-
ference and had not seen the (no trespassing) sign re-
ferred to. She said she did recall seeing a "private prop-
erty" sign "farther into the Morpac compound" (marked
"E" on ALJ Exh. 3). Van Bronkhorst also corroborated
Dennis' testimony that Dennis submitted a list of ques-
tions that day and that Van Bronkhorst and Cotter re-
turned with answers to the questions later that evening.
Miller appeared again at the evening meeting, and Cotter
and Miller had "a small argument over the ownership
rights." Van Bronkhorst recalled that Cotter and Miller
also discussed the Baruso matter at that time and that
Miller agreed "in the interest of fairness" to post an arti-
cle announcing that Baruso had been released from
jail.25
Thomas Alan Tift Jr., of Berkeley, California, said he
worked in the North Pacific cannery in Cordova, mostly
in the "egg room" from "maybe June 25th or so .. .
until October" 1981. He lived in a tent at Hippie Cove
"until the Cordova flood," which occurred after the
election and at which time he moved into town. Tift esti-
mated Hippie Cove was "somewhat over a mile" from
North Pacific, a distance he usually ran in 10 or 15 min-
utes.26
Tift said that from the time he was hired by North Pa-
cific in June 1981 until election day he worked 7 days a
week from 7 a.m. to around 1 a.m., except for two or so
occasions when employees were let off on short notice at
around 10 p.m. There were two mealbreaks each day,
lasting usually an hour each, and coffeebreaks every 2-
1/2 hours. The hours worked by most ("the bulk") of
the North Pacific employees were about the same, al-
"' Van Bronkhorst , who helped prepare some of the union literature,
said the Union prepared leaflets in Spanish , Hebrew, Vietnamese, and
two Philippine dialects. She indicated that having an employee 's name or
address would not tell one what language he or she spoke.
25 Van Bronkhorst also said a "white male about 45 " told her on July
17, when she was leafleting at North Pacific, that she should "move out
to the middle of the road."
26 Tift also worked for North Pacific in 1980 and lived the "entire
season" at Hippie Cove . He thought around 200 lived at the Cove in the
early summer of 1981 , some of whom were employed at the Cordova
canneries while "quite a few" were unemployed . He indicated that other
North Pacific employees lived in "another squatter place called Morpac
Heights," some in town , and "a significant number of people ," including
many from Vietnam , on company premises (in a bunkhouse, "in trailers
and houses").
CHUGACH ALASKA FISHERIES 55
though there was a clean -up crew that started around
midnight . He considered his work to be "boring and ex-
hausting ." Soup and crackers were provided at the noon
hour and again in the evening . There were two places to
eat at the North Pacific facility; full meals were provided
at one of the places for persons residing in the compa-
ny's bunkhouse as part of a "package deal." Coffee and
cookies were served at coffeebreaks.
Tift said he was the in -plant organizer for the Union
and served as its observer at the 1981 election, although
he never joined the Union. Tift said he attended one or
two union meetings . He encouraged other employees to
attend, but few did so as they either had errands to run
or wanted to go to bed and sleep.
Tift said he was free to leave the premises on meal-
breaks . He said he used his lunch hour to go to town for
mail or eat a meal on occasion , but usually he used the
time to eat and catch up on his sleep . He said he slept
about 4 hours a day.
Tift said he knew little about the Union and therefore
submitted questions about it to Union President Cotter.
Tift posted copies of answers he received , along with the
questions (G.C. Exh. 32), on or about June 16 and
handed out a "few" copies to individuals. Tift said no
one told him he could not post or distribute literature to
employees at North Pacific. Nor did anyone restrict him
from talking to fellow employees about the Union. North
Pacific also posted literature before the election, Tift
said. He recalled that the Company posted results of
election which the Union lost and an article concerning
"the murder of a couple of officials down in Seattle."
Tift said he found it "pretty frustrating" to maintain
contact with Cotter and Bronkhorst . He had little time
and energy to see them . He recalled the Union held a
picnic but that he and other North Pacific employees
worked that day. He described Hippie Cove as "a place
in the bush with a bunch of tents" and not a suitable
place for a meeting. It generally rained, he said, and
there were "no facilities."
According to Tift, North Pacific held two preelection
meetings in 1981 . He said the meetings were mandatory
and that "virtually everyone" was there. Ken Roemhilt,
whom he regarded as the superintendent of North Pacif-
ic, spoke at both meetings, making "basically the same
pitch," saying, among other things, "how proud he was
of us," "sorry" for the interference of the "Union trou-
ble" and that "he wished he could have the chance to
show what he could do for us if his hands were free."27
Lawrence Cotter has been president of the Alaska
Council of the ILWU since July 1978. He works with 30
or more bargaining units concerned with seafood proc-
essing . He represents longshoremen throughout the State
of Alaska, except for the Ports of Anchorage and Skag-
way, and employees working on tugboats , towboats, and
tankerboats.
Cotter began visiting Cordova in November 1978
when there was a small membership in the Prince Wil-
liam Sound and Copper River Cannery Workers Union.
In 1979 that Union merged with the ILWU.28 Cotter
said the cannery work force in Cordova was about the
same in 1980 and 1981 which , in each case , he described
as including 130 to 135 resident cannery workers with
the remainder falling into two groups: first, transients
and college students , and the "other would be a group of
various ethnic nationalities"-Filipinos, Vietnamese, Is-
raelis , and "some Spanish-speaking people"from Peru
and "perhaps some Mexicans as well."
Cotter visited Cordova briefly in April 1981 but began
his 1981 organizing drive after his arrival there around
June 27. Except for 6 or 7 days, when he was in Bristol
Bay and Juneau on other union business , he remained in
Cordova until after the election. Cotter said he asked
Local 37 for help at the beginning of the 1981 drive, a
time of "some turmoil ," he said, because two union offi-
cials had been "shot and killed " in early June 1981.
Cotter was provided the assistance of Emily Van Bronk-
horst, Glenn Suson, who apoke a Filipino dialect, and a
"cadre" of four or five others who helped out periodical-
ly . 29
Cotter said his union did not ask for access during
1979 or 1980 but did so "at least nine times" prior to the
1981 election . His first request was in writing which he
said he hand-delivered to Respondents ' attorney, John
McCormac , in the latter's office in Seattle. Cotter testi-
fied, as the letter dated April 23, 1981, states (G.C. Exh.
19) that he "asked for the right of access to visit with
employees in nonwork areas during nonworking hours,
between, I believe, the time period June 15th through
August 20th." Other requests were made of McCormac
by telephone, Cotter said.S°
There were "several reasons" for requesting access in
1981, Cotter said, but, "in essence," there was the need
to communicate with the workers in person . Leafleting,
which he had relied on in 1980, was not effective. Many
employees lived on company premises and left them only
rarely . Those leaving the premises often did so by car,
and it was "difficult" to get such persons to accept litera-
ture . Rain also presented problems, he said . So did the
87 The General Counsel 's attorney questioned Tift, in form of an offer
of proof, concerning a conversation he said he had with Ken Roemhilt
after the election . Tift said he went to the superintendent about reports of
being in "hot water" and a union spy. The superintendent "took the op-
portunity to lecture me on the issue of unions ," Tift said . The General
Counsel also questioned Tift concerning preelection conversations he said
he had with Al Fulton , "one of the bosses at North Pacific" and Don
Roemhdt , "the person next below Al Fulton ." These conversations are
also in the record as an offer of proof . While the General Counsel argued
such proffered testimony was relevant to the issue of access as well as the
amendments offered at the hearing , I hold otherwise . The testimony con-
cerning Roemhilt and Fulton are , therefore, disregarded as being outside
of the properly alleged charges
28 In 1979 the International Laborers Union also sought representation
of cannery workers in Cordova. That year the workers could vote for
either union or against both (G.C. Exh. 6)
29 Cotter said he spoke "some Spanish and a little bit of German."
Cotter testified on cross-examination that he did not ask any local resi-
dents to take an active organizing role in 1981. They had become frus-
trated and lost some of their enthusiasm by that time, he said . Cotter be-
lieved that the local folk would support the Union as they had been
members of the "old union."
30 On cross-examination , Cotter said he had three conversations with
McCormac between May 10 and July 20 . Cotter said he never got a
"direct answer," but "his answer" made it clear access would not be
given.
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
foreign language that some workers spoke. Free soup
and crackers induced workers to stay on the premises
during breaktimes , as did the long hours of work which
made them tired . Other organizing efforts were also un-
successful-two union meetings , both poorly attended; a
picnic ; a "hot dog" special ; and an advertisement in the
local weekly newspaper, along with a letter addressed to
its editor . Use of the local radio was considered but re-
jected as it broadcast only during the daytime . He said
the Union may have put an ad in the local TV scan sta-
tion.
Cotter said that the Union had no in-house organizers
at either St. Elias or Chugach in 1981 . The in-plant orga-
nizers at the other two canneries were not effective, ac-
cording to Cotter. The organizers worked in isolated
work areas; "at break times everybody appeared always
to be tired and exhausted and had other things to do."
The organizers were also unfamiliar with ILWU con-
tracts and had little knowledge of labor relations. One
"tack" the Union took, Cotter said, was to encourage
workers to ask questions, and he promised to immediate-
ly respond.3 t
Cotter indicated that the Union's 1981 organizing
drive was handicapped by lack of time and manpower
available to contact cannery workers . He said there were
approximately 590 persons on the Excelsior list and the
Union had but 10 days or so to reach them before the
election . There were but a few ("something like 13 or
21") employed at Chugach, Cotter said , but "basically"
the unit was "scattered " among the other three canner-
ies, St . Elias, North Pacific, and Morpac . 32 Cotter said
there were four mailings of letters to workers, explaining
that "it was no easy thing to sit down and hand-address
590 envelopes , or to go around and lick stamps to put on
them ." Cotter said no effort was made to telephone or
visit local resident workers . According to Cotter, the
Excelsior list carried no telephone numbers, and many of
the workers only had a post office box address.33
Cotter said the Union was "absolutely unsuccessful in
reaching people at St . Elias." He testified that he tele-
phoned Respondents ' attorney, John McCormac, after
receiving a report that Lisa Dennis, the in-house organiz-
er at Morpac, had been told she could neither talk about
the Union during working hours nor distribute literature
on Morpac property. "And John's response to me was,"
Cotter said , "in relation to talking on the job about the
Union he was nervous that there would be an injury,"
and with respect to "distribution of literature we never
reached a mutually agreeable decision ." Cotter said he
then gave instructions that-
... she could talk about whatever she wanted to
talk about whenever , regardless of the time, when
she was at the cannery . And that she should make
31 G.C. Exhs. 32, 33, and 40 are letters sent by Cotter in response to
questions asked of in-plant organizers in July 1981.
32 On cross-examination , Cotter stated that "we never really concerned
ourselves with Chugach, with nine people in the bargaining unit."
as Cotter stated that the Union made no mailings between the 1980 and
1981 seasons because of the "highly transient" nature of the cannery
workers. On cross-examination Cotter indicated there was no organizing
effort between seasons.
sure though that she doesn't disrupt the operations.
And I said in terms of literature , go ahead and dis-
tribute literature but do it surreptitiously.
Cotter said he also had used "a young man from Idaho,"
Ron Robinette , "to run a midnight rendezvous, so to
speak , and to take leaflets and go onto the company
property . . . [but that he should] be very careful that he
didn 't get caught."
Cotter claimed that during the 1981 organizing drive
he was denied opportunity to make contact with workers
by local canning officials in Cordova . In early July, ac-
cording to Cotter , he was leafleting on the parking lot in
front of the North Pacific facility and was approached
by Plant Manager Ken Roemhildt , who told him:
[T]he parking lot is company policy and you know
the rules . He said, there's the road out there, he
said , please go and stand out in the road and do
your leafletting out there.
Cotter said he then moved off the parking lot and onto
the road.
In July Cotter went to Chugach accompanied by Van
Bronkhorst and Suson . The Chugach official in overall
charge, Forsell, told Cotter he was "mad " at him be-
cause of the legal costs involved in "this whole election
procedure," stating he had been "happy dealing with
Local 37." Forsell refused to shake Cotter's hand but al-
lowed Van Bronkhorst and Suson to go into the plant.
Cotter assured Forsell he would not be electioneering
and was then also allowed into the facility.
On July 17 Cotter called St. Elias President Jim Poor
and asked "reasonable access to visit with the employees
in non-work areas during non -work-hours." He was re-
ferred to Evans, and again Cotter made the same request.
Cotter said he was told by Evans that it was St. Elias'
policy to "not allow non-employee solicitors on compa-
ny property."
Cotter testified concerning three conversations he said
he had with Morpac Vice President Jack Miller in the
summer of 1981 . One occurred in late June or early July,
he said , when Cotter was on the access road in front of
Morpac facility. Miller came out, according to Cotter
and, disputing Cotter's claim that it was a "public
access," said that "Morpac had bought the road." The
second conversation took place on or about July 18. On
that occasion, Cotter said he called Miller and expressed
concern over posting of articles that told of the arrest of
union official Tony Baruso. Cotter said he asked Miller
for the right of reasonable access to visit with employ-
ees in non-work areas during non -work hours for the
purpose of communication with them." Miller's response
was, according to Cotter , that he would never set foot
on Morpac property.
The third conversation Cotter had with Miller took
place on the following day, July 19, around 8 p.m. Van
Bronkhorst was there and Dennis too for a brief time.
Cotter said:
CHUGACH ALASKA FISHERIES 57
We were in the L area, or in the Y area down here
just behind the sign that 's designated as L.34 And
Mr. Miller came out and said that was private prop-
erty . And at that point I instructed Lisa Dennis to
go back to work . I engaged in a conversation with
Mr. Miller and he said that this was all private
property. . . . And he made the comment that the
company owns the property out to the middle of
the highway that runs in front of Morpac, which
we've referred to as the main road . He said that I
should remove myself to the other side of the
middle of the main road . And we started to walk in
that direction as he was pointing these things out. I
reached a point where I thought there would be an
easement in conjunction with the highway ; I believe
the easement is six feet in, or something like that, to
the best of my knowledge , and I stopped there and
said , Jack, I don 't believe that you own the middle
of the road, I just don't believe that your company
owns part of the highway. And I said, I believe this
is an easement in this far and I said I'm not going to
move any farther, if you want to call the police
then go ahead and call the police and we'll see
what happens at that point . And then I went on to
say, look, you know, I don't want any trouble with
you, and we continued to have a conversation at
that point . We went on to discuss the fact that the
Baruso articles were up on the bulletin board.
Cotter said he specifically requested access that day so
he could communicate with employees about the
"Baruso incident" and "other items relating to organiza-
tion ." Cotter recalled also that he and Miller "discussed
fair play and things like that and I made the statement, I
am going to send you this article tomorrow and I expect
you to post it." Cotter said he later sent to Miller a copy
of a newspaper article which explained that Baruso had
been released without any charges.35
"Jim" (James Alan) Poor is the president and superin-
tendent of St. Elias, which is owned by Ocean Beauty
Seafoods . He deals primarily with fishermen, and his son,
Mike Poor, is the plant manager of St. Elias. Jim Poor
has lived in Cordova for 24 years and is currently serv-
ing his sixth term as the city 's mayor . Fishing is the
major industry of the area, and the city, which has
around 2300 or 2400 permanent residents, increases to
about 5000 in the summer . During the peak or canning
season Jim Poor is at the St . Elias facility from around 5
or 5:30 a .m. until 9 p.m., 7 days a week. He explained
that the harvest is "a very perishable product and we're
working generally 7 days a week approximately 16 hours
a day just canning."36
34 Cotter said he recalled seeing a "no trespass" sign at the "L" posi-
tion for the first time on July 19.
35 See G .C. Exh. 34. Cotter also sent a similar article to St Elias At-
torney Chris Evans for posting at the St. Elias facility Cotter said he
sent the articles to both canneries by taxi "because we couldn't go on the
property to deliver them ourselves."
as Superintendent Poor explained that the fish quickly decompose, and
sometimes during the peak season St. Elias could not always get it
canned on the day of delivery.
St. Elias operates about 10 months each year. The
company cans and freezes salmon and also ships it fresh.
St. Elias also processes crab (Tanner, Snow , and Dunge-
ness), herring, and scallops . There are different types of
salmon-king , sockeye or red, and pinks or humpies, the
latter being the "high volume fish ." Local residents typi-
cally process crab, scallops , and sockeye , all of which
are processed just prior to the start of the peak season.37
Jim Poor testified that St. Elias arranged for lodging of
some company employees during the 1981 peak seasonSB
in a downtown hotel , some in a restaurant and others in
an apartment building . Some employees were quartered
in the Company 's two bunkhouses.39 Others stayed in
the tents or in campers on company property that had
been fenced off (marked "D" on ALJ Exh. 3). Still other
St. Elias employees stayed at Morpac Heights and
Hippie Cove. Jim Poor estimated the former to be about
one-fourth of a mile from the Company's facility and the
latter to be between two-thirds and three-fourths of a
mile. A few St . Elias workers slept in automobiles
parked in the public parking lot located just south of the
Company's cannery, although a sign at the site forbade
such activity . The St . Elias superintendent estimated the
number of employees during the 1981 peak season at 200.
A few St. Elias workers came to work by car, accord-
ing to Jim Poor, but most walked . Superintendent Poor
explained that there were two entrances to the cannery,
one on the south near his office (marked with a "P" on
ALJ Exh. 3) and used , he thought , by most employees in
leaving the plant, and another on the north.
In 1981 workers who stayed in the company bunk-
houses ate in a messhall and paid for their meals, along
with the cost of lodging . For nonbunkhouse employees,
homemade soup was furnished ("as many bowls as they
want"), along with crackers and beverages , at lunchtime
and again at "supper" time (5:30-6 p .m.) in the upstairs
souproom . Beverages-coffee, tea, Kool-Aid-were
served before work started and during regular break-
times . (Mealtimes are not paid by St. Elias; breaktimes
are.) Employees sometimes also brought additional food
to eat at the plant . Sandwiches could be bought at night
by members of the cleanup crew.
Superintendent Poor said he had permitted employees
to use his company phone for an emergency . Employees
could use company phones to call Cotter or other local
members . There were also two pay phones (marked
97 Jim Poor explained that "residency is a very touchy subject in
Alaska"-"I figure ," he said, "there 's five different residencies"-and es-
timated that around 40 or more local people were employed at St. Elias
during the 1981 seining or peak season.
38 The St Elias official stated that the 1981 "seine season ... was a
record year," better than 1979 when "we canned 27 days." He said the
seining season usually lasted for about 6 weeks each year.
98 There are 50-52 beds in the St . Elias' east bunkhouse (marked "EB"
on ALJ Exh 3) located on the second floor over a storage area. There
are different rooms , each accommodating four or five people . There are
showers and toilets but no other facilities The west bunkhouse is over
the cannery and has about 50 beds located in different rooms . There are
showers and toilets in the west bunkhouse for both sexes ; also a kitchen-
messhall , which seats around 65 people ; a laundromat; recreation room,
and a TV room which can be used by all St. Elias employees Jim Poor
said guests visited workers living in the bunkhouses, even though there
were no trespass and no soliciting signs in the area.
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"PB") nearby which workers could use. Employees
could mail letters at the plant , and mail addressed to em-
ployees in care of St. Elias was placed in alphabetized pi-
geonhole boxes . Downtown Cordova is approximately
four blocks from the St . Elias facility , and the superin-
tendent thought employees would leave the facility
about twice a week during mealbreaks to go to the post
office or perform some other personal business . Employ-
ees otherwise used their breaktime to relax or take a
"snooze."
Jim Poor stated that one preelection company meeting
was held with employees in 1981 . It lasted approximately
25 to 30 minutes and took place at 7 a.m. on July 20
before production started up . He thought such meeting,
at which he spoke, was "ample to explain our views."40
He said he also posted in the plant a newspaper article
pertaining to Tony Baruso (and another one on the same
subject later at Cotter's request). Superintendent Poor in-
dicated that such was the extent of the Company's cam-
paign in 1981. He said he did not grant access to the
Union because St. Elias employees "work very hard,"
were generally tired , and he did not believe they should
be bothered on their own time.
The St . Elias superintendent identified a number of
places in the Cordova area that he thought were suitable
for the Union to use in talking to workers-the library,
the city parking lot, high school , Coast Guard dock, and
the union hall.
Jim Poor expressed the view that Cotter's 1981 orga-
nizing campaign was less vigorous than the one he con-
ducted in 1980 . "He sent a lot of letters in 1981, our mail
box was jammed ," but there was less leafleting . The su-
perintendent indicated TV, radio, and the weekly news-
paper ("about 99% . . . local news and ads") were avail-
able to the Union. He said the Union could have commu-
nicated with St. Elias workers by placing two persons at
the St. Elias cannery , one at the south entrance and the
other at the pathway between the east bunkhouse and
the north entrance (marked with green "X's"). The
weather was "not too bad" before the election -"a typi-
cal summer, .. . some overcoat , some light rains, some
sunny days ...."
The St. Elias superintendent supported Morpac's claim
that the access road in front of Morpac belonged to it.
He thought it had been previously owned by private
concerns and never owned by the city of Cordova. Jim
Poor said his company had a "joint tender" operation
with Morpac, by which fish were brought to their plants,
but he stated that Morpac, as well as Chugach and
North Pacific, were `competitors."41
"Mike" (Michael James) Poor said he had been plant
manager at St. Elias for 4 years . He overseas "processing
and production from start to finish ." and the hiring and
firing of employees. He identified the various classifica-
40 Jim Poor said he did not want to harass the Company's employees
and was not sure if the Company 's position was clear to them or not. He
indicated that if having a company meeting would operate to entitle the
Union to have the same opportunity he would not want one . The Gener-
al Counsel's attorney conceded that nothing said at the meeting was
being challenged.
41 Other Respondents ' officials also testified that Respondents are
"competitors."
tions of the 200 or so employees working at St. Elias
during the peak season-e.g., dock crew, case -up crew,
egg crew, crab crew , fresh market crew, and clean-up
crew-and their hours of work . He stated that the com-
pany seeks to have a stabilized work force , and many of
its employees have worked for St . Elias during a previ-
ous season . The St. Elias plant manager said the Compa-
ny gets commitments "out of college students , although
they may choose later not to come and work . He indi-
cated that several ethnic groups were represented among
the company 's employees but that it was possible to
communicate in English with most of them . "They seem
to fill out our applications," he said.
Mike Poor stated that the bunkhouses on St. Elias
property holds about 108 people but that only about 94
members of the bargaining unit resided there in the
summer of 1981. He thought "probably 25" lived on the
Company's property within the fenced "tent area." The
St. Elias plant manager did not indicate the number of
employees that lived in Hippie Cove and Morpac
Heights, but he thought "90% of those people probably
walked" to work . He estimated that 60 percent of the
local resident St. Elias workers drove to work.
Between May 15 and June 25, according to Mike
Poor, around 60 employees, mostly local folk, would
work 24 to 40 hours a week for St. Elias. They stay on
and work through the canning or peak season "when
they really make their money." During the peak season
two production lines are in operation (although three are
in place). In a "normal year," he said, the cannery is
closed down for half a day on Sunday or Monday. While
1981 was a banner year (as was 1980), he indicated there
were some short days . His "can records" (which must be
certified to the Food and Drug Administration ) indicate,
he said, that the can lines were down early as follows in
1981: June 26-10:30 p .m.; June 30-2:30 p.m.; July 2-
9:15 p.m. and July 13-3:30 p.m.
Plant Manager Poor said the company 's electioneering
in 1981 was limited to a 25th-hour speech and the post-
ing of a newspaper article. "We really didn 't have time
for anything else," he said . He indicated that employees
were accessible to the Union . The Excelsior list, he
thought, had "everybody's address" on it . Employees
made telephone calls and were "uptown and downtown
running around" during hour breaks before the election.
He said he did not care where employees "go on their
free time. 1142
"Ken" (Kenneth) Roemhildt has been a resident of Cor-
dova since 1965 and superintendent of the North Pacific
facility there (marked "NPP" on ALJ Exh. 3) since
1970 . He testified that he "participates in most of the
hiring" of the firm 's employees.
Roemhildt stated that "we handle canned and frozen
salmon, crab , halibut, herring, almost anything that's
available to us here ." He said his company, like St . Elias,
operates basically on a year-round basis, although North
Pacific was "the only cannery to run crab during the
winter of 1981." Consequently , he said , "we ended up
42 On cross-examination Mike Poor indicated visitors in the bunkhouse
were tolerated but stated "we discourage people from visiting our em-
ployees during the high peak season "
CHUGACH ALASKA FISHERIES 59
with a considerable greater local crew than would have
been normally available to us."
Roemhildt explained that the crab season "starts slow"
in January , peaks around March 1, and then tapers off.
Herring is next, and then the "red" or sockeye season
follows . In 1981, 80 to 90 "local people" were employed
at North Pacific during the red season, which lasted
from around mid-May until June 25.4$ During the 1981
peak season the work force expanded to around 155.44
Roemhildt indicated there is relatively little turnover at
North Pacific.
North Pacific quartered about 54 transients in one
bunkhouse ("BH-1") in 1981. Another , 'BH-2," was
under construction in 1981 . About 20 or so other tran-
sients found housing on their own "some place uptown
or at the cove or Morpac Heights or wherever." "Right
about half" of the approximately 75 transients that year
had worked for the Company during a prior season.
During the red season North Pacific canned about 3
days a week . When the peak season started the schedule
changed basically to:
7:00 o'clock start; 9:30 coffee break; 12:00 noon
lunch; 1:00 o'clock start; 3:30 break; 6:00 o'clock
supper; 7:00 o'clock start; 9:30 break; midnight quit.
The dock crew, whose hours depended on the arrival of
fish, and certain other individuals working in the egg
house and case -up did not follow such schedule, howev-
er.
Coffee and cookies were provided by the Company
during the 15-minute breaks, and soup and crackers were
served during lunch and supper breaks. "A few of the
people would try to make their whole meals out of 18
bowls of soup," he said , but workers often bring along
something else to eat . Bunkhouse employees eat in the
dining area in the bunkhouse . They pay "a fee" for a
place to stay ; "that also includes meals ." The bunkhouse
has a kitchen , a toilet-utility area , a laundry room, and a
pay telephone.45
Mail can be sent out and received ("there is a box on
our counter where they come and check") by employees
at the North Pacific facility . Roemhildt, who usually
went home for all of his meals, said he observed that
"there was always some people leaving . . . to get a
hamburger . . . for mail or personal articles uptown."
Roemhildt said he would see 25 or 30 workers leave the
company's premises , over half walking, during meal-
breaks.
Roemhildt indicated that North Pacific did little cam-
paigning before the 1981 election : "We handed out two
letters explaining our position" and "had one meeting
with the employees" in the bunkhouse dining that lasted
about 15 minutes . Roemhildt said the Company did not
49 About 15 or 20 local people live in trailers on property leased by
North Pacific (marked "T with a circle")
*4 Roemhildt said North Pacific 's Excelsior list had about 160 names on
it "because we didn 't want to take a chance of missing somebody."
as Roemhildt stated on cross-examination that bunkhouse workers
could enter the cannery without going onto public property . He indicat-
ed that such employees could have a friend visit but that social visitors
were not allowed "on a general basis , particularly during the seine
season , you know , as it relates to around election time "
do anymore because it did not consider the Union to be
"a major threat," and "we really didn't have enough
time to have more meetings or do other things." The
Union, according to Roemhildt , "didn 't mount much of a
campaign in 1981 ." He continued:
... The previous year there wa a much greater
effort . Many, many meal break periods there were
people both at our plant and St . Elias handing out
leaflets and talking to people.
During the 1980 campaign , according to Roemhildt, the
Union had positioned persons on the "two routes into
the plant."
Roemhildt stated that 1979, 1980, and 1981 were
bumper years and that 15-hour days were of relatively
recent origin . He thought nearly all of the Company's
workers were off on July 3 and a substantial number off
on July 4. He indicated there could have been "an after-
noon or two or an evening or so off" also.
Mason Wiley, who attends college in Connecticut, tes-
tified that he worked for St. Elias in 1981. He stayed the
first 2 weeks in a company bunkhouse and then moved
into a tent he pitched on company property behind the
east bunkhouse.
Wiley said he was "switched around" in the Compa-
ny's cannery . He worked for a time on the slime line,
which closed down earlier than some parts of the can-
nery . He said he worked from 7 a.m. to 9 p . m. ("some-
times later, sometimes . . . earlier"). "We took an hour
lunch break and an hour dinner break and 15 minute
coffee breaks every two hours." Wiley said he ate his
meals mostly in his tent, sometimes in town, and some-
times in the St. Elias soup kitchen.
Wiley testified that he went to town 15-20 times a
month . The rain , he said , did not deter him from going
outside. Wiley stated that he saw Union Official Cotter
"a couple of times" in town and discussed the Union.
Wiley said he got union literature from Cotter and saw
him a couple of other times in town.
Zane Hathaway, of St. Anthony, Idaho, worked for St.
Elias in Cordova in 1979, 1980, 1981, and 1982. He has
performed different jobs at the cannery, including work
as a "slimer" and as a retort operator . In 1981 and 1982
he lived in a trailer next to the Company's east bunk-
house ; in prior years he had lived in a company bunk-
house and in town.
During the 1981 seining season Hathaway worked
from 8 to 2 a.m. and ate in the "soup kitchen upstairs."
He said he had little free time between June 25 and July
20 and "maybe" had a couple of days off . He said he
managed to make telephone calls, "do laundry, go to the
bank, do some shopping." If it rained he would "maybe"
postpone a trip a day or so, "but I'd go once a week
anyway."
Hathaway said he listened to the radio while working
as a retort operator, and news broadcasts would mention
the Union. Hathaway said he saw union representatives
by the cannery in 1981 and talked to them "a few times."
He said he wrote out some questions (some he thought
of, others were suggested to him by others) and submit-
ted them to Cotter . Cotter came to his trailer as a dinner
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
guest and furnished Hathaway with written answers
(G.C. Exh. 33), along with copies which were given to
others.
Hathaway said he attended the two union meetings in
1979 but "ignored" the Union in 1980. Hathaway said he
had no employment commitment for 1979 but did so in
1980 "if they had a seining season."46 He said he re-
ceived no communications from the Union between sea-
sons.
Joseph Foss of Spokane, Washington, said he worked
as an egg sorter in St . Elias' fish house from June 25 to
mid-August 1981. He testified that he and 10 or 12 others
would usually get off earlier at night than many others.
He started work at 7 a . m. and he knew he would work
at least until 9 p.m.; more often , however, it was later.
He thought he got around 6 or 7 hours of sleep at night.
Foss said he lived in the east bunkhouse and "would
generally cross the bunkhouse across the street and
either go in through the door on this side or the other
side (both marked "D's")." Foss testified that he would
see union representatives two or three times a week be-
tween June 25 and July 20, 1981, when he went from his
bunkhouse to the cannery . Foss thought he received a
leaflet from Cotter on one occasion when he went to his
bunkhouse on a break , and he remembered at another
time "listening to a young lady speak with somebody
else."
Foss testified that he left the cannery once or twice a
week "probably on an average of two times a week,"
and "whether it rained or not ." He might make a tele-
phone call, using the pay phone marked "PB " and usual-
ly after standing in line, or run an errand.
Foss received his mail at the St. Elias facility, includ-
ing three mailings from the Union . He said he read the
Cordova Times in 1981 and recalled reading about the
ILWU.
Jack Miller, whose permanent residence is in Seattle,
Washington, has been vice president of operations for
Morpac since 1979 . Prior to that time he was the firm's
operations manager . Miller said that Morpac is "primari-
ly a seafood freezing and canning facility," operating
only part of the year . In 1981 Miller was in Cordova
from April to early August, living at the Morpac facility,
to first process Dungeness crab, herring and then salmon,
including sockeye . Prior to the start of the peak or can-
ning season on June 25 , 1981, Morpac had employed
around 42 or 45 persons, referred to as the "Filipino
crew" because "they are primarily of Filipino ances-
try."47 They are, he related, "the most experienced,"
"our key people," and "the first to be re-employed."
"For the most part they live in a company bunkhouse,"
Miller said . After the sockeye season (May 18 to June
25, 1981, when employees worked 2 or 3 days a week,
about 8 or 10 hours a day) ended, the number of Morpac
employees increased to 150 or 160 (although over 200
names were on the Excelsior list, G.C. Exh . 14). Miller
thought no more than 40 of the bunkhouse employees
48 Hathaway indicated there "always is" a question whether there will
be a seining season.
47 Asked on cross-examination if the Filipino employees had limited
working knowledge of English, Miller replied that some "are quite well
educated and there are some with college education, in fact "
were in the bargaining unit ; some living in the bunk-
houses were covered by contracts with other unions.
Miller said 67 on the Excelsior list had worked for the
Company prior to 1981, and 25 to 30 were Cordova resi-
dents. 4 8
Transients employed by Morpac in 1981 lived in
"vans" on company property (about six in number,
Miller thought, near the warehouse marked "W"); some
at Morpac Heights, an area of about 30 or 35 acres
owned by Morpac ("we overlook the squatters who
reside there," Miller said), and some at Hippie Cove.
Miller stated that most employees living at Morpac
Heights and at the Cove would travel to the cannery by
walking along the road . Miller estimated the distance
from Morpac to downtown at a quarter of a mile which
he could walk in 12 to 15 minutes.
Few services are available at the Morpac facility.
There is a soft drink and candy machine in the coffeer-
oom. There is a pay phone near the carpenter shop that
employees may use . Miller stated that "we distribute
mail into the pigeon-hole boxes" at the Morpac facility
for employees , but "it's up to the employees to check on
their mail ." He recalled there was an occasion ("when I
was away") when union material was delivered to the
lunchroom for employees . He said employees come and
go during break periods-by car or "afoot." "The
weather in 1981," Miller said , "was no worse than any
other year."
During the 1981 peak season , Morpac's cannery em-
ployees worked as many as 16 hours a day (about the
same as in 1979 and 1980). Miller indicated that some
workers would start at 7 :30 a.m., while others at 8
o'clock . Miller identified an exhibit (R. Exh . 6) that he
prepared which , he said, indicates that during the 1981
peak season there were several days when Morpac shut
down at 10 p.m. or earlier. As he explained it, the exhibit
shows there were 5 days in the 1981 peak season-June
28 and 29 and July 1, 2, and 12-when the Morpac facili-
ty had shut down at 5 p .m. Miller gave the daily sched-
ule as follows:
Breakfast is from 7:00 to 8 :00 in the mornings;
coffee times were from 10:00 to 10:15; lunch is from
12:00 to 1:00; coffee in the afternoon from 3:00 to
3:15; dinner from 5:00 to 6:00; evening mug-up from
9:00 to 9:15. And if we worked past midnight why
there would be another meal from midnight to
12:30.
Morpac serves soup and crackers to its cannery work-
ers at meal periods without charge . Persons living in the
bunkhouse , except for the Filipino crew , are in "bargain-
ing units with whom we bargain" (two carpenters, eight
machinists, and six dock-mess crew), Miller said, and are
furnished meals in the bunkhouse messhall, along with
lodging, as part of a package. The Filipinos , according to
48 Miller stated that "locals who had worked for us previously would
be granted first preferences," others with poor experience with the Com-
pany would be hired next . On cross-examination he indicated that the
transient work force for a particular year would not be known until
around June 26, and no prior commitment is made to such a type of
worker
CHUGACH ALASKA FISHERIES 61
Miller, either have soup and crackers as other cannery
workers do or "cook their own" in their bunkhouse.49
Miller was questioned about Morpac's "no-solicita-
tion" policies and concerning conversations that in-house
organizer Dennis and Union President Cotter testified
that they had with him in July 1981.
Miller said he spoke to Dennis before a shift began
sometime in mid-July of that year around the time he
had been advised by the Union that Dennis was an in-
house organizer at Morpac. Miller said he "immediately
checked to see if our no-solicitation policy was still
posted." Finding that it was not, he had new copies pre-
pared and placed throughout the plant. The no-solicita-
tion policy referred to, expressed in General Counsel's
Exhibit 21, had been sent to Morpac in 1979 and had
been posted in the plant, according to Miller, since that
time . Copies of the policy had to be replaced from time
to time, as they would be torn or become wet, but, said
Miller, he was "sure" a copy was on the front door of
the Morpac office when he arrived back at the Morpac
plant in Cordova in April 1981.50
Miller stated that when he approached Dennis in July
1981, "probably about July 12th" (the date that appears
on G.C. Exh. 21), he asked her what she proposed to do
on behalf of the ILWU. He thought she was not very
specific but did indicate an intention to make employees
aware of the Union and get it recognized. He said he
told her:
.. she should bear in mind she should restrict her
Union activities to her time and not to our time; she
could not discuss-yes, I told her to restrict her
Union activities to her time and not to interfere
with the workers during the routine course of their
duties.
Miller said he recalled no other conversations with
Dennis about the Union except for a comment, made
several days later when he thought she was talking to
some people, like "who was she brainwashing."
Miller testified that Morpac has owned the access road
in front of the Morpac facility since 1980. He drew a line
on Judge's Exhibit 3 showing the boundary of the
Morpac property on the land side of the main road, indi-
cating that Morpac owned the property on both sides
and the road itself. Miller said "the road formerly ended
right there," presumably at the Morpac facility, but that
Morpac had "granted a right-of-way easement to the
State of Alaska for the road."
Miller recalled having two meetings in mid-July on the
access road near where it intersects with the main road.
Both Dennis and Cotter were there each time (although
he indicated at one point he was not sure that Dennis
49 Miller said Morpac production begins a little later in the day than at
other canneries, but he agreed on cross-examination that Morpac 's hours
were "typical" of Cordova canneries Miller also acknowledged on cross-
examination that workers ' lunch and dinner periods on occasion were
limited to half an hour.
50 Miller said he received the revised "current non-solicitation policy
for Morpac," R. Exh. 7, from Attorney John McCormac's office on
March 29 , 1982 He said he issued immediate instructions for it to be du-
plicated and posted . That policy was posted at the time of the hearing at
least in six places , he said.
was there on one of the occasions). Miller remembered
one of the meetings in particular which took place
around 9 p.m. one day. Cotter instructed Dennis to
return to work, he said, and Miller told Cotter "in quite
a heated discussion" to remove himself to the other side
of the road "beyond the middle." Miller said he had
"trouble" keeping signs posted in the area. "Private
property" signs had been placed there at first, and after
his arrival in Cordova in 1981 he had "no -trespassing"
signs erected.
Miller said there was "some other occasion" when he
talked with Cotter in the same area (marked "L" on ALJ
Exh. 3) about the fact that Cotter wanted to come on to
Morpac's "property to speak to the workers about the
Baruso article." Miller stated that Dennis had informed
Cotter that the Company had posted an article on
Baruso, and Cotter wanted to address that issue. Cotter
did not indicate any desire to appear for any other pur-
pose, Miller said. Miller acknowledged that he was
aware of Cotter's letter to Attorney McCormac request-
ing access to the Cordova canneries in 1981.
Miller indicated that union representatives could com-
municate with all employees by stationing themselves at
two places-"at the end of the warehouse where it hits
the road" and "at the apex of the access road and the
main road." He said he had seen Cotter and another
union representative in the area in 1980 and 1981.511
Miller said the only campaigning the Company did in
1981, other than posting of the newspaper article con-
cerning Baruso, was to hold a 30-minute meeting around
1 p.m. in the casing warehouse a day or so before the
election. Miller said "we didn't feel" a more intense cam-
paign was necessary.
George Anderson has been vice president of production
of Chugach since October 1981. Before that time he was
assistant plant manager reporting to Chugach President
Jim Forsell and being responsible for, primarily, "work-
ing with fishermen and tenders and . . . plant foremen
and production foremen." He identified the aerial photo-
graph of the Chugach facility (ALJ Exh. 2), which he
said was located (shown on ALJ Exh. 1 at the end of the
main road) approximately 2-1/2 miles from downtown
Cordova.
Anderson stated that Chugach processed "a few her-
ring" in April 1981 but that it is primarily engaged in the
processing of salmon. Processing of red salmon began on
May 17, 1981; production increased then with the start
of seining season on June 25. At the end of the seining
season the cannery shut down.
Chugach has contracts with the American Fishermen
Union, the "Machinists," and Local 37, a Seattle-based
cannery local, which, Anderson said , "represents our
non-resident production workers." Anderson explained
that local cannery workers hired in Cordova by Chu-
gach would not be covered by the Local 37 contract but
that all others would be.
Local 37 employees live in a company-owned bunk-
house; their wage rate as well as their lodging and meals
51 On cross-examination Miller agreed , however, that employees living
on company property on the "water side" of the main road could go to
the cannery without crossing public property.
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were provided for under the collective -bargaining agree-
ment between Local 37 and Chugach. Anderson ex-
plained that there were only two employees living on
company premises (one in the bunkhouse ) in 1981 who
were in the bargaining unit and not covered by the
Local 37 contract.52 The remaining members of the unit
were "local hires" living in the Cordova area . Persons
coming from the "Lower 48" to work at Chugach "are
within Local 37's jurisdiction, not the Charging Party's,"
Anderson said . 53 Employees not residing on company
property traveled to work either by a company van or
had "their own transportation."
Chugach had 18 Local 37 employees at the start of the
"red season" on May 17, Anderson said . The number of
such employees increased to 55 by June 20. About eight
"local hired" were added by the start of the seining
season on June 25.54
Anderson said persons with prior experience would be
given preference in employment . He indicated those who
"performed well" had a commitment for the next year as
far "as [he is ] concerned."
Anderson said Local 37 and local residents performed
"the same type" of work. He stated he had observed that
Local 37's shop steward, Pedro Antron, talking with
local resident workers . 55 According to Anderson, Chu-
gach had "better facilities" than other canneries and
could produce more product in a given time period.
During the 1981 sockeye season (May 17-June 25) Chu-
gach operated only 3 or 4 days a week . During the sein-
ing season Chugach operated 7 days a week , the can line
starting at 8 a .m. (fishhouse at 7 a . m.) and closing down
at 9 p .m. "The latest we would work would be 11:00 in
the evening ," Anderson said , and, apparently referring to
the sockeye season , added that on some days Chugach
would quit at noon or even earlier.
Chugach employees generally ate at the same time
(noon and 5 p.m.) and took their coffeebreaks at the
same time . An additional meal would be provided if the
cannery worked beyond midnight. Local hires did not
pay for their meals, but they, unlike those residing in the
bunkhouse , generally did not eat breakfast . Local resi-
dents (and presumably other employees ) were free to
leave during breaktimes but few did apparently because
of the distance from town.
Anderson said he could recall no campaigning on the
part of Chugach in 1981.
52 Anderson indicated employees living in the bunkhouse who are not
covered by the contract with Local 37 paid for their meals. He said
bunkhouse employees were allowed to have visitors.
53 See stipulations pp. 906-907 . Quoting Charging Party 's president,
Cotter "The best way to look at it is, in the case of Chugach and Chu-
gach alone among the companies involved in this hearing, employees,
production employees , who are hired in Seattle or outside the State of
Alaska fall under the jurisdiction of 37 as non -resident employees All
other production employees hired in Cordova or from the State of
Alaska are resident cannery workers not falling under the jurisdiction of
Local 37 and thus all under the bargaining unit which we are discussing
in this hearing."
54 Chugach's Excelsior list is in evidence as G.C. Exhs . 12 and 13. An-
derson explained that the "lined-out names" on G C. Exh. 13 are persons
who quit work He said on cross -examination that 8 to 12 locals were
employed in May and "20 or 30" or "maybe 35" in April when herring
had been processed
55 Cotter had testified that Local 37's shop steward was to assist him in
organizing workers for the Charging Party.
Timothy Warrick, an Oregon resident, testified that he
had worked for North Pacific in Cordova at a variety of
jobs since 1978. He had lived at Hippie Cove, in a
camper on St. Elia's premises and, in 1981, at Morpac
Heights.
Warrick said he arrived in Cordova in 1981 on June 20
and began working about 10 hours a day or so at first.
Later he worked longer hours, starting around 6 or 7
a.m. and "didn 't get off until late, usually an hour or so
after the rest of the cannery was through."
Warrick usually ate breakfast in his tent and had soup
for "lunch and dinner" on cannery premises . Sometimes
he would go uptown for a hamburger or to "the bunk-
house if they were having something good." He said he
would go to town two or three times a week for mail or
groceries. The weather did not bother him, he said-
"you've got to live in the rain around here." Warrick
thought he was fairly well informed about the Union and
acknowledged that he "probably pretty much" knew the
Company's position. He said he "read the paper ," picked
up union literature in town, and talked matters over with
his coworkers at the cannery. Warrick stated that two or
three union "mailings" came to him at the cannery in
1981, but he received nothing from the Union during the
winters of 1979 or 1980. He said he had a radio in Cor-
dova but recalled no mention of the Union in any broad-
cast.
Dominador V.. Sibyayan, whose permanent address is in
Seattle, worked for Morpac during the 1980 and 1981
seasons and lived in a company bunkhouse both years.56
He speaks both Filipino and English.
Sibyayan did not recall seeing union representatives on
the main road outside of the Morpac cannery in 1981 but
remembered meeting with in-house organizer Dennis in a
group at the plant during breaktime that year . He said he
also discussed the Union with the 20 or 25 others living
in the bunkhouse.
Sibyayan said he worked in May and June 1981 when
his workdays were not so long . But, he said , he went
uptown "several times" during the peak season prior to
the election when he usually worked from around 5 a.m.
until 8 or 9 p.m. He said he received mail, including leaf-
lets, from the Union at Morpac. He was not sure, but he
thought he had picked up some leaflets while off the
company premises . He said he read the Cordova newspa-
per while in Cordova.
Franco Descargar, a resident of Sun Valley, California,
said he worked for Morpac during the 1979, 1980, and
1981 seasons . In 1981 he started work in April and lived
at the Morpac bunkhouse along with 25 others or more.
At first he worked a 6 a.m. to 9 or 10 p.m. schedule, and
later he said "sometimes I worked 24 hours." He stated
that he saw union representatives "a lot" outside of
Morpac. Also, he said he went uptown on "personal er-
rands" about three times a week during April, May,
June, and July and would see union representatives
"roaming the street ." "They didn 't bother to talk to me,"
however, he said . He received union literature at
ss Sibyayan testified he was currently employed by Morpac, working
as a packer in the freezer , at the time of the hearing.
CHUGACH ALASKA FISHERIES 63
Morpac, and he and the others living in the bunkhouse
discussed the Union . 57 He said he knew in-house orga-
nizer Dennis who, he said , "used to talk a lot about the
Union every breaktime."
Discussion and Conclusions
The Supreme Court in NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1956), had drawn a distinction of
"substance" in evaluating union organizing activity by
employees and by nonemployees (i.e., union organizer).
The Court held in that case that an employer may law-
fully prohibit a union from distributing literature by non-
employees so long as the union can reach the employees
by "reasonable efforts . . . through other available chan-
nels of distribution" and if, in doing so, it does not dis-
criminate against the union . The pertinent part of the de-
cision reads:
. .. an employer may validly post his property
against nonemployee distribution of union literature
if reasonable efforts by the union through other
available channels of communication will enable it
to reach the employees with its message and if the
employer's notice or order does not discriminate
against the union by allowing other distribution. In
these circumstances the employer may not be com-
pelled to allow distribution even under such reason-
able regulations as the orders in these cases permit.
This is not a problem of always open or always
closed doors for union organization on company
property . Organization rights are granted to work-
ers by the same authority, the National Govern-
ment, that preserve property rights . Accommoda-
tion between the two must be obtained with a little
destruction of one as is consistent with the mainte-
nance of the other. The employer may not affirma-
tively interfere with organization ; the union may
not always insist that the employer aid organization.
But when the inaccessibility of employees makes in-
effective the reasonable attempts by nonemployees
to communicate with them through the usual chan-
nels, the right to exclude from property has been re-
quired to yield to the extent needed to permit com-
munication of information on the right to organize.
The determination of the proper adjustments rests
with the Board . Its ruling , when reached on finding
of fact supported by substantial evidence on the
record as a whole [footnote omitted] should be sus-
tained by the courts unless its conclusions rest on
erroneous legal foundations . Here the Board failed
to make a distinction between rules of law applica-
ble to employees and those applicable to nonem-
ployees.
The distinction is one of substance . No restriction
may be placed on the employees ' right to discuss
self-organization among themselves, unless the em-
ployer can demonstrate that a restriction is neces-
sary to maintain production or discipline . Republic
Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803. But
54 Descargar said he had seen different pieces of union literature, in-
cluding G.C Exhs. 25 and 30
no such obligation is owed nonemployee organizers.
Their access to company property is governed by a
different consideration. The right of self-organiza-
tion depends in some measure on the ability of em-
ployees to learn the advantaged of self-organization
from others. Consequently, if the location of a plant
and the living quarters of the employees place the
employees beyond the reach of reasonable union ef-
forts to communicate with them , the employer must
allow the union to approach his employees on his
property. No such conditions are shown in these
records.
In 1972 the Supreme Court in Central Hardware Co. v.
NLRB, 407 U.S. 539, after noting that "Babcock stated
the guiding principle for adjusting conflicts between Sec.
7 rights and property rights," stated at 544-545:
The principle of Babcock . . . requires a "yielding"
of property rights only in the context of an organi-
zation campaign . Moreover , the allowed intrusion
on property rights is limited to that necessary to fa-
cilitate the exercise of employees ' Sec. 7 rights.
After the requisite need for access to the employer's
property has been shown, the access is limited to (i)
union organizers ; (ii) prescribed nonworking areas
of the employer 's premises ; and (iii) the duration of
organization activity . In short, the principle of ac-
commodation announced in Babcock is limited to
labor organization campaigns, and the "yielding" of
property rights it may require is both temporary
and minimal.
In 1978 in Sears, Roebuck & Co. v. San Diego County
District Council of Carpenters, 436 U.S. 180 (1978), the
Supreme Court indicated that the burden of proving in-
accessibility and the ineffectiveness of alternate means of
communication so as to entitle a union access to an em-
ployer's property , was upon the union and that such
burden was a heavy one (at 205-206):
Experience with trespassory organizational solicita-
tion by nonemployees is instructive in this regard.
While Babcock indicates that an employer may not
always bar nonemployee union organizers from his
property, his right to do so remains the general
rule. To gain access, the union had the burden of
avowing that no other reasonable means of commu-
nicating its organizational message to the employee
exists or that the employer's access rules discrimi-
nate against union solicitation . That the burden im-
posed on the Union is a heavy one is evidenced by
the fact that the balance struck by the Board and
the courts under the Babcock accommodation prin-
ciple had rarely been in favor of trespassory organi-
zational activity.41
41 In the absence of discrimination , the union 's asserted right of
access for organizational activity had generally been denied except
in cases involving unique obstacles to non-trespassory methods of
communication with the employees See, e g NLRB v S & H Gro-
singer's Inc., 372 F.2d 26 (CA 2 1967); NLRB Y. Lake Superior
Lumber Corp, 167 F.2d 147 (CA 6 1948).
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The United States Court of Appeals for the Seventh
Circuit in Montgomery Ward & Co. v. NLRB, 692 F.2d
1115 (7th Cir. 1982), discusses "post-Babcock & Wilcox
cases, "including Hudgens v. NLRB, 424 U.S. 507 (1976),
and Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978),
and points out that Babcock & Wilcox remains "an impor-
tant starting point for analysis of any solicitation activity
by nonemployees ." The court also notes that under Bab-
cock & Wilcox it is the "Board 's task to evaluate the rela-
tive strength of the competing interests involved and to
balance them ."58 The court in Giant Food Markets v.
NLRB, 633 F.2d 18 (6th Cir. 1980), involving area stand-
ards picketing, stated (at 22-23):
Through Babcock & Wilcox the Board is charged
with the knowledge that a private property owner
may legally bar union activity if "reasonable efforts
by the union through other available channels of
communication will enable it to reach the employ-
ees. .. .
When communication by mail , phone, or in
person is possible and feasible, the employer may be
able to bar absolutely nonemployees from its prop-
erty.
The General Counsel argues that "unless the employer
can show that access will significantly harm its oper-
ation, nonemployee organizers are entitled to access to
the employees on the employer 's property," and goes on
to state that "a combination [of] factors related the em-
ployees' living and working conditions rendered ineffec-
tive the means of communication normally used in orga-
nization campaigns." The factors listed by the General
Counsel are these:
[1] the transient nature of the work force; [2] the
language barriers that existed because English was
not the primary language of a significant number of
the employees ; [3] the size of the bargaining unit;
[4] the shortness of the season and of the time the
Union had to reach the employees prior to the 1981
election ; [5] the prolonged periods of rain Cordova
experiences during June and July; [6] the high per-
centage of employees who lived on the Respond-
ents' premises where the Union could not visit, in
tents, or at addresses that could not be easily ascer-
tained and who ate the free meals provided by Re-
spondents ; and [7] last but probably most important,
the incredibly long and often irregular hours
worked during the peak season.
I believe, and find , that the General Counsel has not
properly assessed some of the factors cited . Nor do I be-
lieve that he has properly applied the Babcock & Wilcox
balancing test with respect to Chugach , St. Elias, or
North Pacific . It may be that a union need not exhaust
every means of communication in attempting to reach
58 The court states that the case before it involved application of a no-
solicitation rule without having to decide "the issue of access alone." The
Court, however , expressed "doubts whether reasonable efforts by the
union would in fact have enabled it to reach the employees with its mes-
sage."
employees during an organizing campaign , certainly
where an attempt to use alternative means would be ob-
viously futile . But in order for a union to gain access,
surely it has the burden of showing that it made a dili-
gent organizational effort before it can be heard about
the lack of access.59
There can be no denying that contact with many of
the bargaining unit employees by the Union herein may
have been difficult . But the difficulty of communicating
with unit employees would have been reasonably over-
come with respect to nearly all except for employees of
Morpac. Thus, I find that the Union, through the Gener-
al Counsel , proved a need for access to Morpac's prem-
ises to communicate with its employees but not as to the
employees of the other three Respondents.
The first five factors listed by General Counsel furnish
little aid to the Union and the General Counsel on this
record. The work force in the bargaining unit was, to be
sure, transient in nature, but many were known to the
Union . The Union was furnished with Excelsior lists and,
no doubt, in most cases had as much information about
the place of employees ' lodgings and whereabouts of em-
ployees not working as the employer Respondents did.
As Respondents point out in their brief, about three-fifths
of the unit membership were either local residents or had
been previously employed by the Respondents. Five
hundred plus employees in a bargaining unit is a sizeable
group, to be sure , but a union with an appropriate
number of organizers should be able to communicate
with such a number of workers within the time allotted.
Right of access to an employer 's premises cannot be
predicated on limited union resources or lack of effort on
its part . The language problem, with which the Respond-
ent Employers also had to deal in communicating with
workers, is entitled to little weight here . Should it have
access, the Union would have still had the problem of
communicating with the workers. The burden of furnish-
ing any necessary translators is the Union 's, not the Re-
spondent Employers.
Rainfall in Cordova in June and July is unusual, but it
hardly provides a basis for granting access . And, of
course, the flooding in Cordova in 1981 occurred after
the election.
The sixth and seventh factors are more worthy consid-
erations, especially the latter-i.e., the long hours
worked during the peak season-as it operated, more
than anything else, to limit the Union 's communication
with many bargaining unit employees . The Union could
have made more of an effort by contacting employees at
Morpac Heights, Hippie Cove, or along the road as they
went to and from work , but its failure to do so, under
the circumstances , is understandable . The employees had
little time of their own , and most of the workers used it
19 Cf. Hutzler Bros Ca Y. NLRB, 630 F.2d 1012 (4th Cir. 1980). The
court in Hutzler Bros , which denied enforcement of a Board order allow-
ing union access to a Towson , Maryland department store 's premises for
lack of proof that the union had no other reasonable means of communi-
cating with employees, stated that a "union 's organizational effort, or
lack of it, however, remains a factual circumstance to be weighed in de-
ciding if the union has met its burden of proof."
CHUGACH ALASKA FISHERIES 65
to transact personal business (bathe, wash clothes, go to
the post office, store, etc.) or rest.so
There were some employees (but not a "high percent-
age," as the General Counsel asserts) who were not read-
ily accessible because they lived on cannery property,
either in bunkhouses , tents, trailers, or other "housing."
Such workers need not have left the cannery premises to
go to work , eat, or wash themselves or their clothes, and
conceivably some may not have done so in 1981 between
June 25 and the July 21 election, although most surely
did so . The General Counsel suggests that Respondents'
furnishing of "free meals" (actually little more than soup
except in the case of Respondent Chugach which sup-
plied its workers with meals) aids the Union's cause for
access . If so, the benefit to the Union is slight . While fur-
nishing of food and beverage to the cannery workers
may have kept them on the premises during their regular
breaks for a time while such were consumed , I believe
the effect in isolating or restricting employees from the
Union, on that basis, was not really significant.
Thus , having considered the entire record and applica-
ble law, I am constrained to find that the Union, through
the General Counsel , did meet its burden with respect to
Respondent Morpac and is entitled to reasonable access
with respect to that Respondent 's premises in Cordova
but not as to the other Respondents . The Union worked
diligently to communicate with employees of Morpac,
which resisted the Union's efforts to do. The record sat-
isfies me that working conditions at Morpac were such
that they were placed "beyond the reach of union effort
to communicate with them" and , therefore , "the employ-
er [Morpac] must allow the union to approach [its] em-
ployees on [its] property" (Babcock & Wilcox, supra, 351
U.S. at 113).
The testimony of General Counsel's witnesses Cotter,
Van Bronkhorst , and Dennis attest to the persistent
effort of the Union to communicate with Morpac work-
ers. The lack of the Union 's success in reaching workers
of Morpac was not due to the lack of effort on the part
of the Union. The Union's attempt to make contact with
Morpac workers on the main and access roads in front of
as The number of hours worked involved conditions of employment
relevant in determining whether employees are within or "beyond the
reach of reasonable union efforts to communicate with them." I do not
fault the Union for not making (greater) use of the TV scanner , the radio,
or the weekly newspaper in Cordova . Under the circumstances, it is
likely such media would have limited effectiveness in enabling the Union
to reach the cannery workers . Further , conditions at Morpac Heights and
Hippie Cove did not lend themselves to organizing activities especially
during rainy weather. (I agree with the General Counsel that the Coast
Guard dock was not an appropriate place for meeting with cannery em-
ployees, but the site of a proper meeting place is of little significance in
the present posture of the proceeding .) The failure of the Union to make
a greater effort to make contact with the cannery workers living in the
local Cordova area away from Respondents ' premises , however, is not so
understandable.
It should also be pointed out that the fact that an employer has a pree-
lection meeting with his employees does not entitle a union to enter upon
the employer's premises The General Counsel has not challenged any-
thing that was stated during Respondents ' preelection meetings . Also, the
fact that the Respondents posted articles reporting on the Tony Baruso
incident does not entitle the Union to enter upon their premises , whether
the article was accurate or not . Likewise , reference to or comment on the
incident by the Respondents during a preelection meeting would not give
rise to a right of access by the Union . Cf. United Steelworkers v. NLRB,
646 F . 2d 616 (D.C. Cir. 1981).
Morpac's facility was met with undue resistance by the
Company . Morpac Vice President Miller himself cor-
roborated the testimony of the General Counsel's wit-
nesses that the Company prevented handbilling and other
organizing activity on what was undoubtedly "public"
property.61
While the Union made a sufficiently diligent effort to
reach Morpac workers entitling it to access to that can-
nery's premises , the record does not persuade me that it
did so with respect to Chugach, St. Elias, or North Pa-
cific. Union President Cotter himself acknowledged on
the stand that "we never really concerned ourselves with
Chugach with nine people in the bargaining unit ." Union
Representative Van Bronkhorst said she delivered some
leaflets to the union steward at Chugach but never both-
ered doing any handbilling there.
The Union made no great effort to communicate with
employees of St . Elias . Van Bronkhorst thought she
probably leafletted St. Elias only on three mornings.
There was a public lot next to St. Elias where workers
parked , but it appears that the Union made no effort to
engage in any organizing effort there . The Union had no
in-house organizer at St . Elias (or at Chugach). Most, if
not all , of St. Elias employees living in the (West) bunk-
house undoubtedly went to town a number of times
during the peak season prior to the election and were ac-
cessible to the Union.
While the Union designated an in -house organizer at
North Pacific , its effort at organizing that cannery was
less than diligent . Tift, the in-house organizer , recalled
seeing Union President Cotter only on one occasion in
front of the Morpac facility . Van Bronkhorst was vague
about her visits to Morpac, although she had "a recollec-
tion of leafletting" with Glenn Susan on at least one oc-
casion there . Again , most, if not all , of the unit employ-
ees living in the Company's bunkhouse undoubtedly left
the cannery premises during the peak season before the
election on occasion and were accessible to the Union.
The record reveals that not only did Morpac violate
Section 8(a)(1) by denying reasonable access to the
Union , it also violated the same provision of the Act by
maintaining and enforcing an invalid no-solicitation rule.
Paragraph 9 of the General Counsel 's original com-
plaint62 puts in issue a part of Morpac 's no-solicitation
81 It is clear, even by Miller 's own testimony , that the main road in
front of the Morpac facility was a public thoroughfare and that he had
no right to request the union organizers to move off it or to one side of
it Even if it had not been a public road , it was sufficiently "public" that
Morpac could not have lawfully prevented the Union 's organizing activi-
ty thereon See, for example , Scott Hudgens, 230 NLRB 414 ( 1977); also
Kelly-Springfield Tire Co , 265 NLRB 511 (1982).
62 I hold the Morpac no-solicitation rule that was applied in 1981, al-
though in effect earlier as Miller testified , was unlawful without consider-
ing whether it, or the revised rule that was posted in March 1982, was
invalid under the Board 's 1981 T. R. W. Inc , decision, supra. Cf. Documa-
non, Inc., 263 NLRB 706 (1982) The revised Morpac no -solicitation rule
was drafted and posted following issuance of the Board 's T.R. W. Inc de-
cision , well after the 1981 organizing campaign had been concluded. The
revised rule was challenged only on the eve of trial and was not fully and
fairly litigated . Cf. Grumman Flexible Corp., 264 NLRB 227 (1982) In
any event, the order being entered herein will provide relief needed on
his issue and sufficient guidance to Respondent Morpac for the future
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
policy-i.e., the second paragraph which prohibited em-
ployees from distributing any material "in work areas at
any time whether the employee is on or off work" and
from "soliciting" during employees' "work time"-that
was posted by Morpac Vice President Miller in July
1981, about the time he learned from the Union of its in-
plant organizers at Morpac. It is to be noted that the part
of the no-solicitation policy challenged is concerned with
activities of employees and that under Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1956), the "rules of law
applicable to employees and those applicable to nonem-
ployees" are different. (Babcock & Wilcox, 351 U.S. at
113.) In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the
Court pointed out (at 571-572):
The Court recently has emphasized the distinction
between the two cases: "A wholly different balance
was struck when the organizational activity was
carried on by employees already rightfully on the
employer's property, since the employer's manage-
ment interests rather than his property interests
were there involved." Hudgens v. N.L.R.B., 424
U.S. 507, 521-522, n. 10, (1976); see also Central
Hardware Co. v. N.L.R.B., 407 U.S. 539, 543-545.
The Court also stated in Eastex (at 570):
In Republic Aviation the Court upheld the Board
ruling that an employer may not prohibit its em-
ployees from distributing union organizational liter-
ature in nonworking areas of its industrial property
during nonworking time, absent a showing by the
employer that a ban is necessary to maintain plant
discipline or production. This ruling obtained even
though the employees had not shown that distribu-
tion off the employer's property would be ineffec-
tive. 324 U.S. at 798-799, 801. In the Court's view,
the Board had reached an acceptable "adjustment
between the undisputed right of self-organization as-
sured to employees under the Wagner Act and the
equally undisputed right of employers to maintain
discipline in their establishments." Id., at 797-798.21
21 In Republic Aviation the Court also upheld Board rulings that
employees may solicit other employees to join a union on the em-
ployer's property dung nonworking time, and may wear union in-
signia on the employer 's property . The Board since has distin-
guished between distribution of literature and oral solicitation,
holding that the latter but not the former may take place in work-
ing areas during nonworking time . Stoddard-Quirk Mfg. Co, 138
NLRB 615 (1962).
In NLRB v. Magnavox Co., 415 U.S. 322 (1974), the
Court stated (at 327):
We agree that a ban on the distribution of union
literature or the solicitation of union support by em-
ployees at the plant during nonworking time may
constitute an interference with Sec. 7 rights. The
Board had earlier held that solicitation outside
working hours but on company property was pro-
tected by Sec. 7 and that a rule prohibiting it was
"discriminatory in the absence of evidence that spe-
cial circumstances make the rule necessary in order
to maintain production or discipline." In re Peyton
Packaging Co., 49 NLRB 828, 843-844. We ap-
proved that ruling in Republic Aviation Corp., 324
U.S. 793, 801-803... .
... limitation of the right of in-plant distribution
of literature to employees opposing the union does
not give a fair balance to Sec. 7 rights, as the Board
ruled in the present case. For employees supporting
the union have as secure Sec. 7 rights as those in
opposition. The Board's position, as noted, has not
always been consistent. But its present ruling is, we
think, quite consistent with Sec. 7 rights of employ-
ees. It is the Board's function to strike a balance
among "conflicting legitimate interests" which will
"effectuate national labor policy," including those
who support versus those who oppose the union.
NLRB v. Truck Drivers Union, 353 U.S. 87, 96.
Moreover, as respects employers, the rights of solic-
itation of employees by employees oonoerning Sec.
7 rights are not absolute.
As we noted in Republic Aviation Corp. the Board
may well conclude that considerations of produc-
tion or discipline may make controls necessary. No
such evidence existed here and the trial examiner so
found. Accordingly, this is not the occasion to bal-
ance the availability of alternative channels of com-
munications against a legitimate employer business
justification for barring or limiting in-plant commu-
nications.
With the above basic guidelines in mind, I must find
that the Morpac no-solicitation rule which Morpac Vice
President Miller applied in July 1981 was violative of
Section 8(a)(1). The rule was, at best, ambiguous.63
As paragraph 9(a) of the complaint alleges, the
Morpac rule does not define working time. The rule
could have been interpreted as prohibiting distribution of
material or any organizational activity during breaks or
meal times . Respondent Morpac could have easily
enough explained that its no-solicitation rule did not
forbid organizational activities during such periods. Re-
spondent introduced no evidence to show that produc-
tion or discipline made it necessary to restrict employees
from engaging in organizational activity during non-
working time.64
I reject the General Counsel's contentions that the
Morpac rule was promulgated in response to union orga-
nizing activities and that it was discriminatorily applied
to union organizing activity.
I credit Miller's testimony that the Morpac no-solicita-
tion rule had been in effect and posted well before mid-
July 1981, although he became aware at that time, when
63 In upholding the Board 's order against an ambiguous no-solicitation
rule ("against solicitations 'on company time and on company property"')
in NLRB Y. Miller, 341 F.2d 870 (2d Cir 1965), the court said (at 874).
The true meaning of the rule might be the subject of grammatical
controversy . However, the employees of respondent are not gram-
marians . The rule is at best ambiguous and the risk of ambiguity
must be held against the promulgator of the rule rather than against
the employees who are supposed to abide by it.
Cf. Essex International, 211 NLRB 749 (1974), modified in T.R. W., Inc.,
supra.
64 Nor is it clear what constitutes "work areas" under the Morpac
rule, although the complaint does not focus on this aspect of ambiguity.
CHUGACH ALASKA FISHERIES 67
advised of the appointment of in -house organizers, that it
needed reposting (except "on the front door of the
office" where it had remained posted). Such facts do not
warrant a finding that the rule was promulgated or ap-
plied in violation of the Act. See North American Rock-
well Corp., 195 NLRB 1046 (1972). There is no evidence
that Respondent Morpac knowingly allowed distribution
of any material or solicitation for any cause while deny-
ing similar activities on behalf of the Union.
There remain the issue of whether on July 12 Morpac
Vice President Miller unlawfully restricted Dennis from
talking with other employees about the Union during
working hour. Miller's inquiry as to "what he proposed
to do on behalf of the ILWU" may have been unseemly,
but it is to be borne in mind that Dennis was not the
usual Morpac cannery worker . She was an in-house
union organizer, and Miller had just learned that fact
from the Union . He was undoubtedly interested in know-
ing what organizing activities she might be engaging in
on company premises , and he "told her to restrict her
union activities to her time and not to interfere with the
workers during the routine course of their duties." The
testimony of Dennis, which impresses me as otherwise
reliable, is not persuasive on this point . She indicated ini-
tially that Miller had uttered antiunion remarks, suggest-
ing that the presence of a union could affect a wage in-
crease . She said Miller went on to say that the company
policy would not allow her "to talk to anybody about
the Union on the company property during working
hours." On cross-examination , however, she acknowl-
edged that on a prior occasion she had to clarify her tes-
timony on this issue and that she agreed that Miller on
the date in question had told her that she was not al-
lowed to talk with employees about the Union during
Miller's worktime in the Company's work areas. The
credible evidence of record does not sustain paragraph 8
of the complaint , and it will be dismissed.
CONCLUSIONS OF LAW
1. Each of the Respondents is an employer engaged in
commerce within the meaning of Section 2(6) and (7) or
the Act.
2. The Union is a labor organization within the mean-
ing or Section 2(5) of the Act.
3. Respondent Morpac , Inc. has interfered with, re-
strained , and coerced employees In violation of Section
8(a)(1) by (1) denying nonemployee organizers of the
Union reasonable access to its Cordova, Alaska facility
for the purpose of soliciting employees on behalf of that
Union and for the purpose of communicating with that
employees concerning organizational matters, and (2)
maintaining and enforcing a rule which did not clearly
advise employees that they could engage in union orga-
nizing activities by soliciting on behalf of the Union
during their free or nonworking time even though on the
premises of Morpac, Inc.
4. The record does not establish any other violation of
the Act as alleged.
As a remedy, I shall recommend that Respondent
Morpac, Inc. cease and desist from engaging in unfair
labor practices found and take certain affirmative action
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]