Mike Yurosek & Son

National Labor Relations Board - Board Decisions

Apr 21, 1977

229 N.L.R.B. 152 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mike Yurosek & Son and Fresh Fruit & Vegetable
Workers, Local P-78-B, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO. Case 21-CA-143911
April 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On October 29, 1976, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
Respondent's fruit and vegetable packing shed in
Holtville, California, occupies the major part of a
block encompassed on three sides by 4th Street, 3d
Street, and Orange Street, all of which are public
thoroughfares. Across Orange Street from the pack-
ing shed is another block, most of the property on
which is owned by Respondent; Respondent also
owns the alley which is located in the middle of this
block and which runs from Orange Street to Walnut
Street. Many of Respondent's employees park their
vehicles in this alley and, during their lunchbreak,
walk from the packing shed across Orange Street and
into the alley to eat. The area is primarily occupied
by produce packing sheds and related facilities, and
neither the nearby streets nor the alley is paved.
The Union began organizing Respondent's em-
ployees in December 1975. Thereafter, Respondent's
foreman, Pete Villegas, on several occasions success-
fully ordered union organizers to leave the alley, on
grounds that it was private property. Shortly before
the employees' lunch period on February 10, 1976,
Union Officer Jerry Breshears, along with several
I By order of April 8, 1977, the Board granted without prejudice
Petitioner's request to withdraw its petition in Case 21-RC 14460, which
had been consolidated with Case 21 CA-- 14391. Accordingly. Case 21 -RC
14460 has been severed from Case 21-CA- 14391 and closed.
2 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inm., 91 NLRB 544 (1950), entd. 188 F.2d 362 (C.A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
229 NLRB No. 21
other union representatives, came to the area for the
purpose of passing out union leaflets to employees.
Breshears initially stood in Orange Street and
handed leaflets to employees crossing from the
packing shed to enter the alley where their cars were
parked, but later entered the alley to talk with
employees eating in their cars. Villegas approached
Breshears and told him that the property was private
and he must leave. Breshears responded that he had
a right to be in the alley and said he intended to talk
with the workers. After further heated verbal
exchange, Villegas went back to the packing shed to
call the police. The officer who responded to the call
telephoned his headquarters for advice and was told
that the local police chief considered the alley public
property. After being advised of the police chief's
position, Respondent made no further attempts to
exclude union organizers from the alley.
The Administrative Law Judge found that Villegas
neither engaged in unlawful surveillance nor unlaw-
fully excluded or attempted to exclude union agents
from the alley in violation of Section 8(a)(1) of the
Act. The General Counsel, however, contends that
under California property law the alley was "implied-
ly dedicated" to the public and that consquently
Respondent could not lawfully prohibit or attempt to
prohibit use of the alley by union agents. The
General Counsel also contends that Villegas engaged
in unlawful surveillance of employee activities when
he followed Breshears a short distance into the alley
on February 10, 1976, and insulted him in the
presence of several employees. For the reasons set
forth below, we find no merit to these contentions. 3
The theory of the General Counsel's case, as
originally set forh in the complaint, was that the
Respondent, through Villegas, "in a parking lot
adjacent to Respondent's facility . . . engaged in
surveillance of employees' union activities." There
was no allegation that Respondent violated the Act
by Villegas' attempt to expel Breshears from the alley
owned by Respondent, although evidence regarding
this incident was received as background for the
surveillance allegation.
Toward the close of the hearing, the Administrative
Law Judge noted that nothing in the complaint or in
the objections to the election alleged the attempt to
expel Breshears from the alley as a violation of
Section 8(a)(1) of the Act. Consequently, the General
I We do not adopt the Administrative Law Judge's finding in fn. 14 of his
Decision that a finding of unlawful surveillance requires a determination of
whether the alley was in fact private property. Whether or not Respondent
had a right to exclude union organizers from the alley, had Respondent
engaged in surveillance of its employees' union activity or created the
impression of such surveillance, Respondent would have thereby violated
Sec. 8(a)( ) of the Act. Here, however. based on credibility resolutions, the
Administrative Law Judge found, and we agree, that the allegations of
surveillance were not supported by the record.
152
MIKE YUROSEK & SON
Counsel moved, over Respondent's objection, to
amend the complaint to include such an allegation.
The Administrative Law Judge reserved ruling on the
motion to amend, noting the General Counsel's
failure to initially allege the described conduct as a
violation in the complaint when, from the outset, the
General Counsel was aware of the facts concerning
the incident.
In his brief to the Administrative Law Judge, the
General Counsel for the first time raised the
argument, as set forth above, that the alley was
"impliedly dedicated" to the public. 4 The Adminis-
trative Law Judge, in his Decision, granted the
General Counsel's motion to amend, stating that the
denial-of-access issue had been litigated, but further
indicating that it is irrelevant whether the alley has
been dedicated to the public. We disagree. If the
alley were clearly public property, Respondent's
attempts to exclude union representatives therefrom
would be unlawful under Section 8(a)(1) of the Act.
Therefore, although the Administrative Law Judge
found that Respondent's denial of access was lawful,
he erroneously found that the issue of whether the
alley was dedicated to the public was irrelevant to his
conclusion. In response to the General Counsel's
argument that under California property law the
alley has been "impliedly dedicated" to the public, 5
Respondent contends that such a determination is
beyond the Board's jurisdiction and special expertise
and that, at any rate, this issue has not been fully
litigated.
We find merit in Respondent's contention that the
"implied dedication" issue (and therefore the denial-
of-access issue to which it is crucial) was inadequate-
ly litigated.6 Thus, we note that the General Counsel
did not raise the broader denial-of-access issue until
after all testimony had been taken, the Administra-
tive Law Judge did not rule on the General Counsel's
motion to amend the complaint in that regard until
he wrote his Decision, and the General Counsel did
not suggest that "implied dedication" was an issue
until he submitted his brief to the Administrative
Law Judge. Therefore, we find not only that
Respondent was not fully put on notice with regard
to this issue until well after the hearing, but also that
it was denied an opportunity to litigate it. This is
particularly so, both factually and legally, with
respect to whether such matter falls within the
meaning of the very precedent the General Counsel
urges us to apply.
4 Citing Thomas Gion, et al. v. Cii' of Santa (ruz. 84 Cal. Rptr. 162, 465
P.2d 50 (Calif Sup. Ct., 1970).
5 The General Counsel apparently views the issue as a purely legal one.
As set forth below, we disagree and hold that Respondent received
inadequate notice and the issue of "implied dedication" was not fully
litigated.
6 Since we find that the issue was not fully litigated, we find it
Indeed, were we to reach the merits of the
"dedication" issue, the record appears to us to be
insufficient to support a finding under California law
that the alley was "impliedly dedicated" to the
public. In Gion v. Santa Cruz, supra, the California
Supreme Court held that where the public has used
land for more than 5 years with the full knowledge of
the owner, without asking or receiving permission to
do so and where there has been no objection to such
use, there will be an implied dedication of the land to
the public. In Gion, the court found such dedication
had occurred with respect to beach property and an
adjacent parking lot and road privately owned but
used by the public for nearly 100 years. However, at
the trial of that case, there was extensive testimony
by previous and present owners, by local government
officials, and by various members of the public,
regarding not only the long-term public use of the
property but also the local government's role in
maintaining the property and encouraging its use by
the public.
In the instant case, although there was some
testimony as to the alleged "public" use of the alley,7
there is a paucity of evidence on which to base a
finding regarding the nature and extent of such use.
Furthermore, the record before us contains only
scant evidence pertinent to several issues carefully
scrutinized by the Gion court; e.g., whether present
and previous owners "made more than minimal and
ineffectual efforts to exclude the public," and
whether "a constantly changing group of persons
use[d] [the] land in a public way without knowing or
caring whether the owner permits their presence."9
In view of the above, we find that the General
Counsel's belated motion to amend the complaint
should have been denied and that in any event the
General Counsel has failed to adduce sufficient
evidence to support a finding that the alley was
"impliedly dedicated" to public use. Accordingly.
since such a finding is preliminary to a determination
that Respondent unlawfully attempted to exclude
union organizers from the alley, we conclude that the
General Counsel has not sustained his burden of
proof.
Moreover, even assuming arguendo that the Ad-
ministrative Law Judge properly allowed the General
Counsel's motion to amend the complaint and that
he correctly concluded that the issue of access had
been sufficiently litigated to bring it before the
Board, we conclude that, to whatever extent use of
unnecessary to determine whether we have the authority to make a
determination of this nature under state property law.
7 As noted above, the local police chief also apparently considered the
alley public.
n Gion, supra, 84 Calif. Rptr. at 170.
9 Id at 172.
153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the alley by the public may have been established on
the record here, such use was not as "public" as that
of the parking lot involved in Central Hardware. 10 In
such circumstances the test to be applied in determ-
ing whether the Respondent's property rights must
yield to the employees' Section 7 rights is that set
forth in Babcock & Wilcox, i.e., whether the circum-
stances "place the employees beyond the reach of
reasonable union efforts to communicate with
them."" I Here, there was no contention or evidence
that Respondent's employees were beyond the reach
of reasonable union efforts to communicate with
them. Furthermore, it is apparent from the record, as
the Administrative Law Judge found, that the union
representatives could, and did, communicate with
employees as they crossed Orange Street, a public
thoroughfare.' 2
In light of the above, it is apparent that, on the
record before us, no violation of the Act may be
found. Accordingly, we adopt the Administrative
Law Judge's recommendation that the complaint be
dismissed. 13
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
i0 Central Hardware Company v. N.LR. B., 407 U.S. 539, 547 (1972). The
Court indicated that the store parking lot in issue there had not taken on a
quasi-public character.
" N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105, 113 (1965).
i2 Chairman Fanning concurs in the dismissal of the complaint on this
last ground only.
1i Inasmuch as we find that the General Counsel has failed to establish
that Respondent's attempts to exclude union agents from the alley violated
Sec. 8(a)(l) of the Act, we do not pass upon whether, as the Administrative
Law Judge suggests, Respondent's later abandonment of such attempts
neutralized the alleged unfair labor practices.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
consolidated hearing in these cases held on August 19,
1976, is based on the following: An unfair labor practice
charge in Case 21-CA-14391 and objections to conduct
affecting the results of the election in Case 21-RC-14460
filed by the above-named Union on February 18, 1976; a
complaint issued on April 5, 1976, in Case 21-CA-14391
on behalf of the General Counsel of the National Labor
Relations Board, herein called the Board, by the Regional
Director of the Board, Region 21, herein called Regional
Director; a report issued on May 21, 1976, by the Regional
Director which consolidated certain objections filed by the
Union in Case 21-RC-14460 with the complaint in Case
21-CA-14391 for the purpose of hearing, ruling, and a
decision by an Administrative Law Judge; an order issued
by the Board on June 18, 1976, directing that the Union's
objections be processed in the manner ordered by the
Regional Director.
The complaint alleges that Mike Yurosek & Son, herein
called Respondent, has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the National
Labor Relations Act, as amended, herein called the Act, as
amended. Respondent filed an answer denying the com-
mission of the alleged unfair labor practices.
The Union's objections to conduct affecting the results
of the representation election allege in substance that
Respondent engaged in conduct which interfered with the
holding of a free and fair election and constitutes grounds
for setting aside the election.
Upon the entire record,' from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs submitted by General Counsel and
Respondent-Employer, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, Mike Yurosek & Son, is a California
corporation engaged in the business of receiving, grading,
packing, handling, and loading vegetables at its commer-
cial packing shed located in Holtville, California. Respon-
dent annually sells and ships goods and products valued
over $50,000 directly to customers located outside the State
of California. Respondent admits it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
1. THE LABOR ORGANIZATION INVOLVED
Fresh Fruit & Vegetable Workers, Local P-78-B,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, herein called the Union, is
admittedly a labor organization within the meaning of
Section 2(5) of the Act.
III. BACKGROUND AND ISSUES
On December 9, 1975, Respondent opened its vegetable
packing shed in Holtville, California, the facility involved
in this proceeding. The Union immediately initiated a
campaign to organize the packing shed's production and
maintenance employees and on December 15, 1975, filed a
representation petition with the Board seeking an election
among these employees. On January 15, 1976, Respondent
Respondent-Employer's motion to correct transcript by changing the
name "Sophia Arellas" to Josephina Arellano is hereby granted.
154
MIKE YUROSEK & SON
and the Union, with the Board's approval, agreed that a
secret-ballot election would be conducted by the Board on
February 13, 1976, to determine whether a majority of the
Respondent's production and maintenance employees
desired union representation. The election was held and
the Union failed to receive a majority of the ballots.
The questions presented for decision are whether during
the period before the election Respondent's representatives
interrogated employees about their union activities, told
employees not to talk with union representatives, denied
union representatives access to an area where employees
park their automobiles,2 engaged in the surveillance of
employees' union activities, and promised employees
benefits and threatened them with reprisals for the purpose
of discouraging them from voting for the Union, and, if so,
whether this conduct in whole or in part violated Section
8(a)(1) of the Act and constitutes the type of conduct
sufficient to set aside the results of the election.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Promise of Benefits
One or two weeks before the election Respondent owner,
David Yurosek, met with the company's approximately 43
production and maintenance employees in groups of 6 or 7
employees. He told them Respondent was opposed to
union representation and did not want them to vote for the
Union. He pointed out that union representation meant the
employees would pay dues and initiation fees and that they
really did not need union representation because Respon-
dent already was paying them good employment benefits,
including medical insurance and union wages.
General Counsel contends that to discourage the em-
ployees from voting for the Union Yurosek promised them
wage increases and employment at the company's Bakers-
field, California, packing shed when the packing season
ended in Holtville and reemployment at Holtville when the
season for the next major crop, carrots, started.
Regarding the alleged promise of employment at the
company's Bakersfield packing shed the record establishes
that Respondent operates a packing shed in Bakersfield,
California, approximately 330 miles from its Holtville
facility. The Bakersfield facility operates all of the year
whereas the one in Holtville operates only about 7 months.
The Bakersfield employees, like the ones at Holtville, are
not represented by a union, however, the Holtville
employees are paid $3.30 an hour in contrast to an hourly
rate of $2.40 at Bakersfield. It is undisputed that at almost
each group meeting employees asked Yurosek whether
there would be work available for them at the Bakersfield
facility when the season ended in Holtville. Yurosek
answered that those employees who wanted to work at the
company's Bakersfield packing shed should fill out em-
2 This conduct which was not alleged in the complaint took place during
the course of other events which were alleged as unfair labor practices and is
closely related. if not inextricably connected, to such alleged unfair labor
practices particularly the one involving surveillance. Respondent had the
opportunity to litigate and did litigate this issue. Under the circumstances, I
have ruled upon this conduct and grant General Counsel's motion, made at
the close of the hearing, to amend the complaint in this regard.
3 The description of Yurosek's remarks about employment at the
company's Bakersfield packing shed is based on the testimony of Yurosek
ployment applications and if there were any job openings
when they sought work they would be employed. He
explained that the starting rate of pay at Bakersfield was
$2.40 per hour, as contrasted to the $3.30 they were
currently earning, and also explained that their Holtville
seniority would not carry over to the Bakersfield facility. 3
I do not believe that Yurosek's remarks concerning
employment at the company's Bakersfield packing shed
constitute an unlawful promise of a new benefit designed
to discourage employees from voting for the Union. There
is no evidence that Yurosek's offer of employment at the
Bakersfield facility constitutes a new employment policy.
To the contrary, it is perfectly natural for an employer who
operates several plants to give employment preference to
those employees whose work has ended at one plant and
are seeking work at one of his other plants. The fact
Respondent had not previously announced this policy to its
Holtville employees is not surprising because the Holtville
packing shed had been in operation only 7 weeks.
Moreover, in assessing the legality of Yurosek's promise of
employment at the Bakersfield facility, it is extremely
doubtful whether it can be characterized as a benefit
inasmuch as Bakersfield is located over 300 miles from
Holtville and Yurosek specifically warned the employees
that they would receive almost $1 an hour less than they
were currently receiving and would not retain their current
seniority and would have to fill out employment applica-
tions and would be employed only if the Bakersfield
facility needed additional workers. For all of the foregoing
reasons I find Yurosek's offer of employment at the
company's Bakersfield facility does not constitute an
impermissible promise of a benefit violative of Section
8(a)(1) of the Act.
Regarding the alleged promise of reemployment at
Holtville when the season for the next major crop
commenced, the record establishes that from the start of
the packing shed's operation on December 9, 1975, the
employees were for the most part packing broccoli and the
broccoli season was scheduled to end in February 1976
when, after apparently a short hiatus, the carrot season
would start. Antonia Gonzalez, an employee, testified that
Yurosek, at the meeting she attended, told the employees
that if the company did not have any problems with the
Union and if the Union did not "come in" that the
employees would have work during the carrot season.
Gonzalez was not a convincing witness. She expressed
uncertainty as to what Yurosek said about this subject and
was only able to present an approximation of his alleged
remarks. Moreover, her testimony is uncorroborated and
Yurosek, whose testimony is corroborated by Supervisor
Singh and employee Josephina Arellano,4 testified that in
speaking about the carrot season he did not condition
who, in bearing and demeanor, impressed me as a credible witness. I have
rejected the uncorroborated testimony of Lucille Thompson that, at the
meeting she attended, Yurosek conditioned his offer of employment at
Bakersfield on the employees rejecting the Union. Yurosek credibly denied
that he made this statement and his denial was corroborated by the
testimony of Supervisor Teresa Singh and employees Jesus Perez and
Martha Berres, all of whom were at the meeting Thompson attended.
4 Singh and Arellano were present when Yurosek spoke to the group of
employees which included Gonzalez.
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment upon the outcome of the union election nor
did he even refer to the Union.5 Yurosek, who impressed
me as a reliable and trustworthy witness, testified that in
response to several questions about the carrot season he
informed the employees that after the broccoli packing
season had ended Respondent intended to pack carrots
and that the current workers would be the first ones hired,
explaining to the employees that the company's past
practice was to give the employees with seniority prefer-
ence for work in packing crops in succeeding seasons. It is
undisputed that it has been Respondent's practice at its
other plants located in Bakersfield and Saugus, California,
and the practice of other employers in the area, to grant
current employees preference for work on succeeding
crops. Based on the foregoing, I find that Yurosek's
promise that the current employees would be reemployed
packing carrots was simply a continuation of an existing
employment practice; hence, it did not constitute an
impermissible promise of a benefit violative of Section
8(a)(l) of the Act.
Regarding the alleged promise of wage increases the
record establishes that Respondent was either paying union
wages at Holtville or a wage scale that was almost identical
to the one being paid his competitors in the area whose
employees were represented by the Union. In this regard,
the Union's campaign literature, in substance, conceded
that Respondent was paying union wages, but informed the
employees that Respondent's reason for doing this was not
because it was "Santa Claus" but because other packing
sheds in the area, whose employees were represented by the
Union, paid union wages. Yurosek credibly testified that
the rate of pay Respondent paid its employees at Holtville
was based on a wage survey of the packing sheds in the
immediate area, including those whose employees were
represented by the Union.
The General Counsel during his case-in-chief presented
no evidence that Yurosek promised employees a wage
increase. The only evidence on the subject of wages
adduced by the General Counsel during his case was that
Yurosek had told the employees they did not need union
representation inasmuch as he was already paying them
union wages. Obviously this does not constitute a violation
of Section 8(a)(1) of the Act and the General Counsel does
not argue otherwise. However, during Respondent's case-
in-chief employees Berres and Arellano, who attended
different employee meetings, gave the following testimony:
Berres.
Q. Did [Yurosek] say that if the Union got raises
he would give them too?
A. He said according to the way the Union paid, he
paid.
Q. Did he say he would give raises if the Union got
raises so that he would not have problems?
A. Yes.
Likewise, I reject employee Thompson's uncorroborated testimony that
an employee, whom she could not identify, asked Yurosek if the employees
who voted against the Union had seniority for work next year and that
Yurosek answered in the affirmative. Thompson, whose testimony on this
matter was uncertain and inconsistent, did not impress me as a trustworthy
Arellano:
Q. Did [Yurosek] say anything about the Union?
A. No. Only he told us that if Maggio [a union
packing shed] raised his wages, that he would; that he
would raise them, too.
Berres' testimony that Yurosek stated, "according to the
way the Union paid, he paid," is consistent with the
previous finding that Yurosek told the employees that they
did not need union representation because he was already
paying them union wages; hence, it is not an impermissible
promise of a benefit. Likewise, Berres' testimony that
Yurosek stated he would grant the employees raises if
employees represented by the Union received raises so as
to avoid problems and Arellano's testimony that if Maggio,
a company whose employees are represented by the Union,
raised its wages Respondent would do the same, is
perfectly consistent with Respondent's existing policy,
described supra, of paying its employees union wages.
I recognize that Berres' testimony that Yurosek ex-
plained that he would grant wage increases comparable to
those secured by the Union "so that he would not have
problems" was not contradicted. The whole record, how-
ever, refutes this testimony. It was not corroborated by any
one of the several witnesses who testified for either the
General Counsel or Respondent. To the contrary, the other
employees who testified that Yurosek spoke about wages
- Arellano, Gonzalez, and Singh - did not testify that his
reference to a pay raise was explained in terms of a device
to avoid having "problems," rather their testimony was to
the effect that Yurosek told the employees that he would
continue to pay wages comparable to the wages paid by the
employers whose employees were represented by the
Union. Under the circumstances I reject Berres' testimony.
But, in any event, accepting it as an accurate description of
what Yurosek stated, as I have done above in evaluating
the record, I find that the reference to "problems" is
ambiguous and, in the circumstances of this case, is as
likely a reference to the fact that if Yurosek did not
continue to pay wages comparable with his competitors
who paid union wages that he would have problems in
hiring employees.
Based on the foregoing, I find that Yurosek's promise to
keep his wages comparable to the wages paid by those
employers in the area, whose employees are represented by
the Union, is not a promise of a new benefit; hence, it is
not violative of Section 8(a)(l) of the Act.
For all of the reasons set forth above I shall recommend
that this portion of the complaint be dismissed.
B. The Interrogation
Lucille Thompson, an employee, testified that approxi-
mately 1 week before the election Supervisor Teresa Singh
asked, "What did Ralph [referring to Union Representative
Ralph Perez] say to you?" and told Thompson, "those
witness. She later testified that the disputed question was simply "do we
have seniority?" When it was brought to her attention that this was
inconsistent with her original testimony she admitted that she did not
remember how the disputed question was worded.
156
MIKE YUROSEK & SON
people really bother you." Singh, who specifically denied
that this episode took place, impressed me as the more
trustworthy witness. Accordingly, I credit her denial and
shall recommend that this portion of the complaint be
dismissed.
C. The Threats
Antonia Gonzalez, an employee, testified that approxi-
mately 2 weeks before the election, during the employees'
morning break, she overheard employee Juanita (Juana)
Robles, who had formerly worked with Supervisor Singh at
the Heber packing shed, tell Singh, "you don't have to
worry because you remember the time when the Union
wanted to come into the Heber shed remember we did not
sign. So don't worry about us." Singh supposedly patted
Robles' shoulder and declared, "yes, I know you're one of
mine. I know you're not union, that's why I have you
working here." Robles and Singh each credibly testified
that this episode never took place.
On the morning of February 10, 1976, Salvador Palma,
Jr., applied for a job at Respondent's packing shed. He
spoke to Foreman Pete Villegas who told him there were
no job openings. However, Villegas, according to Palma,
gave him permission to stay on the premises and sell tires
to the employees and, as the employees arrived for work,
Palma testified he observed Supervisor Singh speak to a
group of employees near the timeclock. Palma testified he
observed Singh take union leaflets out of the hands of
several employees and wrinkle and throw them away and
overheard her tell the employees not to take the leaflets or
talk to the union representatives, stating if they continued
to talk to the union representatives Foreman Villegas might
lose his temper and not give them a job packing carrots.
Singh credibly denied she engaged in this conduct and
Villegas credibly testified that Palma did not ask his
permission to stay and sell tires but simply asked for a job
and, when he was told there were no job openings, left the
packing shed. In bearing and demeanor Singh and Villegas
impressed me as more reliable witnesses than Palma. 6
Accordingly, I have rejected Palma's testimony.
For all of the foregoing reasons I shall recommend that
this portion of the complaint be dismissed.
D. The Surveillance of the Employees' Union
Activities; the Denial of Access to the Union
Representatives,; Telling Employees Not To Talk to
Union Representatives
The episodes which the General Counsel contends
constitute the unfair labor practices discussed herein
occurred on January 12 and 22 and February 10, 1976. In
order to evaluate the evidence pertinent to these allegations
it is first necessary to have in mind the location of
6 Aside from his poor demeanor I note that on certain significant matters
Palma was vague and evasive. When questioned whether his mother was
ever employed by Respondent he was at first vague and evasive in his
answers and only reluctantly admitted that shortly before February 10 his
mother had worked at the Holtville facility and had been fired. Indeed, she
was fired by Supervisor Singh. Likewise, Palma was vague, evasive, and
contradictory about the period of time he remained inside the packing shed
on February 10 and about his whereabouts that morning.
I The alley and the adjacent property in this block are owned by Lay
Respondent's packing shed, particularly the areas where
the employees parked their automobiles.
The packing shed takes up an entire block and is
bounded by Fourth Street on the north, Third Street on the
south, and Orange Street on the east. The street east of and
parallel to Orange is Walnut Avenue. The block directly
across from the packing shed on Orange Street is owned
almost in its entirety by Respondent, including the alley
which runs through lots 4 and 17 of this property.7 The
alley is unpaved and is approximately 30 to 40 feet wide
and 300 feet in length. It connects Orange Street and
Walnut Avenue. There are no gates or other obstacles
limiting ingress or egress nor is the alley posted with "no
trespassing" signs or other signs indicating that it is private
property. Thus, it is not surprising that the alley has been
used for at least 10 years by the general public as a
convenient short cut between Orange Street and Walnut
Avenue.8 Respondent purchased the property which the
alley bisects in December 1974 and thereafter did virtually
nothing to limit its use by the general public. It did not post
the alley against trespassers or otherwise by sign indicate it
was private property. Respondent's only effort to prevent
public use was when, on one occasion, David Yurosek
asked a trucker to use an alternative route instead of the
alley.
On December 9, 1975, when Respondent's packing shed
began its operation, the employees parked their automo-
biles in the alley and in a lot adjacent to the packing shed,
owned by Respondent, located at the northern end of the
packing shed near the corner of Fourth and Orange Streets,
herein called the parking lot. The great majority of
employees parked in the parking lot inasmuch as in the
area immediately adjacent to the alley Respondent was in
the process of constructing a facility to recycle the water
used in its packing shed, thus making it inconvenient for
the employees to park in the alley. However, sometime in
January 1976, after this construction ended, and when the
rains had made it too muddy to park in the parking lot, the
majority of the employees began to park in the alley.
1. The events of January 12, 1976
During the lunch period on January 12, 1976, Union
Representatives Perez and Leal drove onto the company's
parking lot, where several employees were lunching. They
talked with the employees for about 10 minutes when
Foreman Villegas, from the company's loading dock, a
distance of about 30-35 feet from the union representa-
tives, yelled out for them to get off the company's property.
The union representatives did not comply so Villegas
reiterated his command, this time more emphatically. The
union representatives now moved off the parking lot onto
Orange Street; however, Villegas who was still standing on
the company's loading dock, again yelled for them to get
Properties, a partnership. Respondent's owners, David and Mike Yurosek,
comprise one-half of this partnership. General Counsel in his posthearing
brief concedes that "Respondent through a subsidiary, Lay Properties, owns
lots 4 through 17 on block 42 [referring to the property on which the alley is
situated ]."
s The finding that the alley at all times matenal and for at least 10 years
has been used without interruption by the general public is based on the
undenied and credible testimony of Union Representatives Perez and
Breshears.
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off the company's property. Perez answered that they were
now not on company property but were standing on a
public street and would remain there and talk to the
employees. Villegas made no further statement and the
union representatives remained.
I find nothing in this episode which constitutes a
violation of Section 8(a)(l) of the Act. Villegas was
privileged to prevent the union representatives from
soliciting employees on Respondent's property, N.LR.B. v.
The Babcock & Wilcox Co., 351 U.S. 105 (1956), and, that
he momentarily told the Union representatives they could
not solicit the employees from the public street -
apparently out of a mistaken belief that they were still
standing on the parking lot - does not reach the level of
an unfair labor practice, for, as soon as Villegas realized his
error he dropped the matter and made no further protest
against their presence. Likewise, Villegas' conduct does not
constitute impermissible surveillance of employees' union
activities where, as here, the record establishes that it is not
unusual for Villegas to be on the loading dock during the
normal course of his work and there is no evidence that
Villegas on the date in question ventured onto the loading
dock for the express purpose of keeping the employees'
union activities under surveillance. Villegas credibly
testified that he never went onto the dock for that purpose.
For these reasons Villegas' conduct on January 12, 1976,
does not constitute a violation of Section 8(a)(1) of the Act.
I note that, although not referred to in the General
Counsel's posthearing brief, the record establishes that
Perez, on cross-examination, testified that following the
January 12 episode he ventured back onto the parking lot
on three or four occasions and, even though Villegas on
two of those occasions observed him, Villegas did not ask
him to leave but told the employees, "don't talk to that guy
- don't listen to him." This testimony does not ring true. I
cannot believe that Villegas, after emphatically protesting
Perez' presence on the parking lot on January 12 and
ordering him off, would on subsequent occasions allow him
to remain on the parking lot. To the contrary, Villegas
credibly testified that on several occasions after January 12
he observed Perez on the parking lot and ordered him off.
Likewise, Villegas credibly testified that he never told any
employee not to talk to Perez.
2. The events of January 22, 1976
It is undisputed that on January 22, 1976, shortly before
the employees' lunchbreak, Union Representative Perez,
accompanied by three other union representatives, arrived
at the packing shed. Perez walked across Orange Street to
the packing shed and approached two or three employees
who were working together in the Respondent's "carrot
dump" which is adjacent to the packing shed. Perez asked
them when the employees were scheduled to take their
lunchbreak. He remained in close proximity to these
employees for a short period of time and was observed by
Foreman Villegas who, according to Perez' testimony,
walked over to where Perez was standing with the
employees and told him, "Leave these people alone. I don't
9 Villegas, who impressed me as the more credible witness, testified that
when he observed Perez with the employees that were working at the "carrot
dump" that he walked over and was informed that Perez felt he had the right
want you talking to them. I don't have no use for your
cause. I don't believe in what you're doing. Just get the hell
out of here and leave us alone." Assuming Perez' version of
what took place is accurate,9 I find nothing impermissible
in Villegas' outburst. All that it proves is that Villegas
observed Perez talking with the employees during their
worktime and directed Perez not to talk to them. Under the
circumstances, I cannot construe Villegas' statement as a
blanket prohibition that Perez could not talk to the
employees during their nonworking time.
Perez, after his confrontation with Villegas, rejoined the
other union representatives and waited for the employees
to leave the packing shed to have lunch. They stationed
themselves on Orange Street and, as the employees left the
packing shed and crossed the street on their way to the
alley where their automobiles were parked, they were
solicited by the union representatives. Perez testified that
for approximately 20 to 30 minutes during this period of
time Villegas, who was standing in the packing shed
observing the solicitation, occasionally yelled out to the
employees, "Don't talk to those guys. Just go and eat your
lunch. Don't talk to them. Just get away from them." Perez'
testimony is not corroborated. None of the other union
representatives who were present were called to testify nor
did any of the employees corroborate his testimony.
Villegas credibly testified that he never told any of the
employees not to talk to union representatives. Villegas
impressed me as the more trustworthy witness. According-
ly, I reject the General Counsel's contention that Villegas
on this occasion directed employees not to talk to the
union representatives. Finally, I do not regard Villegas'
conduct in observing the union representatives solicit the
employees as unlawful surveillance inasmuch as this union
activity took place in plain view of Respondent's packing
shed where Villegas had a right to be and there is
insufficient evidence to establish that Villegas deliberately
set out to keep the employees' union activities under
surveillance.
3. The events of February 10, 1976
On February 10, 1976, shortly before the employees'
lunch period, the Union's chief administrative officer, Jerry
Breshears, accompanied by Union Representatives Perez,
Leal, and Detiesch, came to the packing shed for the
purpose of passing out leaflets urging the employees to vote
for the Union. Breshears and Perez stationed themselves on
Orange Street and Leal and Detiesch on Walnut Avenue in
front of the entrance to the alley across from the packing
shed which connects Orange Street with Walnut Avenue.
Breshears and Perez handed employees union leaflets as
they left the packing shed and crossed Orange Street to
enter into the alley where their cars were parked. Shortly
after the lunch period had commenced Breshears entered
the alley to speak with some of the workers who were
eating lunch in the parked cars. He had gotten approxi-
mately 40 feet into the alley when Foreman Villegas, who
was eating his lunch with several other employees in the
back of employee Esparaza's pickup truck which was
to talk to the employees. Villegas told him that he could not speak to them
during their working hours.
158
MIKE YUROSEK & SON
parked at the Orange Street entrance to the alley, yelled out
for Breshears to keep out of the alley. Breshears ignored
this command, so, Villegas repeated it but still without
effect. Villegas jumped off the truck and went over to
Breshears and told him "get your ass off this property."
Breshears answered that he had a right to be there and
intended to talk to the workers. Villegas stated, "This is
private property and I said get your ass off of it or I'm
going to throw you off." Breshears dared Villegas to carry
out his threat and pointed out that the Union might win the
election so Villegas would have to deal with Breshears
which made it foolish for them to fight. Villegas told
Breshears, "get off this property . . . I don't want you
talking to my workers." 10 Breshears refused to leave the
alley but instead walked over and introduced himself to a
group of three or four employees who were eating their
lunch in the alley. Villegas followed him over and told the
employees that Breshears was one of the "leeches" and
"bloodsuckers" who only wanted the employees to work
for him so he could get their money and drive a big car."
Breshears, at this point, left the employees and walked
down the alley toward Walnut Avenue and Villegas went
in the opposite direction to the packing shed where he
phoned the police.
A police car arrived immediately and parked at the
Orange Street entrance to the alley where both Villegas and
Breshears, in the presence of several employees, spoke to
the police officer. Villegas told the officer that the union
representatives were on private property and he wanted
them to stay out of the alley. Breshears replied, in
substance, that they were only talking to the employees and
had a right to do this in the alley since it was a public
thoroughfare. The police officer indicated he would radio
the police station for advice. Breshears and Villegas
remained aside of the police car and, in the presence of the
policeman and several employees, engaged in a verbal
altercation. Villegas called Breshears a "leech" and a
"bloodsucker" and, in reply, Breshears using Villegas as a
"sounding board" made a campaign speech to the
employees. He stated that he did not know why Villegas
would object to the employees joining the Union since it
was not going to cost Villegas any money and it would
mean more money for the employees. Villegas remarked,
"just keep it up you're going to get yours." The police
officer told them both to "settle down," that he wanted no
10 The description of the events of February 10 which had occurred up to
this point for the most part is based on Breshears' uncontradicted testimony.
There is a significant dispute, however, about what took place during the
period when Breshears and Perez were situated on Orange Street distrib-
uting literature to the employees. Breshears testified that Villegas, from the
pickup truck, shouted to the employees as they crossed Orange Street,
"don't talk to that guy. They're just trying to steal your money." Perez
testified that in addition to this remark Villegas also told the employees
"Don't take those leaflets . . . they are just trying to get your money."
Villegas specifically denies he ever told any of the employees not to talk to
union representatives and further testified that he did not tell any of the
employees not to talk to Breshears or not to take any of the leaflets that he
was distributing. Villegas impressed me, in bearing and demeanor, as the
more reliable witness and I have credited his denials.
I I recognize that Villegas in effect denied this particular confrontation
with Breshears in the presence of the employees, testifying that there were
no employees in the alley closer than 40 or 50 feet from them at any time
when they spoke. On this point, Breshears impressed me as the more reliable
witness. I do not, however, credit Palma's testimony that at this time
trouble from either one. The police officer eventually
received a radio message from the police station and
informed Breshears and Villegas that the chief of police
had advised him that the alley was a public road and that
because of this Villegas could not stop the union represen-
tatives from entering it and talking to the employees. At
this point of time the lunch period was ending and the
employees were in the process of returning to work.
The election was conducted on February 13 and the
Union's representatives returned to the packing shed on
February 11 and 12 and, without objection, solicited
employees in the alley.
The record does not establish that Foreman Villegas
conducted himself in a manner sufficient to warrant a
finding that Respondent violated Section 8 (aX I) as alleged
in the complaint. Villegas' refusal to permit the union
representatives from soliciting the employees in the alley 12
where they parked their cars does not constitute an unfair
labor practice for the reason that the alley was Respon-
dent's property. See N.LRB. v. The Babcock & Wilcox
Company, 351 U.S. 105, 112-113 (1965), wherein the
Supreme Court held that an employer may prohibit the
intrusion on his property by nonemployee union organiz-
ers, absent a showing that no adequate alternative means
of communication with the employees is available or that
the employer is discriminating against the Union by
allowing other distribution on its property. Here there is no
contention or evidence that Respondent's employees were
beyond the reach of reasonable union efforts to communi-
cate with them nor is there any credible evidence that
Respondent discriminated against the Union by allowing
others to communicate with employees on its property. The
fact that the public's open and continuous use of the alley
for a period of over 5 years may constitute a common law
dedication of the land to the public 13 is not relevant to the
situation here. See Central Hardware Co. v. N.LR.B., 407
U.S. 539 (1972). In view of the foregoing, I find that
Respondent by denying the Union access to its property
has not engaged in unfair labor practices within the
meaning of Section 8(a)( 1) of the Act. 4
Likewise, I am unwilling to infer unlawful surveillance
from Villegas' presence while the union representatives
were distributing leaflets on Orange Street. The distribu-
tion took place right in front of Respondent's packing shed,
under the eyes of supervision, and Villegas credibly
Villegas told the employees "to go about their business, go cat lunch and
forget about him [Breshears]." As I have indicated previously, Palma did
not impress me as a credible witness. Moreover, this testimony was not
corroborated by Breshears.
12 In addition to his attempt on February 10 to prevent the union
representatives from entering the alley, Foreman Villegas admitted that
prior to February 10 on several occasions he had successfully ordered Union
Representative Perez out of the alley.
13 Thomas Gion, et al. v. City of Santa Cruz, 84 Col. Rptr. 162, 465 P.2d
50. (Calif. Sup. Ct., 1970).
14 Normally I would not have reached the merits of this matter but
would have concluded that there was no unlawful denial of access in this
case for the reason that as soon as the police informed Respondent that the
alley was a public road Respondent in effect withdrew its objections and no
longer impeded the union representatives' efforts to solicit in the alley.
However, it is necessary to determine whether the Act prohibited
Respondent from denying the Union access to the alley inasmuch as the
resolution of the allegation of unlawful surveillance, discussed infra, in part
depends upon the answer to this question.
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that it had been his normal practice, since the
packing shed opened, to eat lunch either at a nearby
restaurant or in the back of employee Esparaza's truck
wherever it was parked. Nor is there evidence which
establishes that Villegas lunched in the back of the truck on
February 10 with the intent of keeping the employees'
union activities under surveillance rather than simply
following his normal practice. The fact that Villegas
followed Union Representative Breshears over to a group
of employees is not evidence of such an impermissible
intent, rather it simply was an act which was part and
parcel of Villegas' permissible effort to evict Breshears
from company property. See Kimbell Corporation, 177
NLRB 828, 832 (1969). The fact that, because Breshears
refused to obey his requests to leave the company's
property, Villegas in a moment of anger followed Breshears
over to a group of employees and spoke in derogatory
terms about Breshears is not sufficient to establish that
Villegas' intent was to interfere with the employees' union
activities rather than simply a continuation of his permissi-
ble efforts to remove Breshears from Respondent's proper-
ty. In view of the foregoing, I find that on February 10,
1976, Respondent did not engage in the surveillance of its
employees' union activities in violation of Section 8(a)(l) of
the Act.
Based on the foregoing, I shall recommend that the
allegations pertaining to the portions of the complaint
discussed in this section be dismissed.
V. THE OBJECTIONS TO THE ELECTION
The Union's Objections 1, 2, 4, 5, 6, and 10 have been
consolidated with the alleged unfair labor practices for the
purpose of a ruling by me. Of these, Objections 1, 2, 4, 5,
and 6 (in part) involve conduct which was alleged as unfair
labor practices in the complaint and, for the reasons set out
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
above, I find that the evidence does not support these
objections and recommend that they be dismissed.
Objection 6, in pertinent part, alleges that "during the
days immediately preceding the holding of the election, the
employer's supervisors shouted and yelled profanities and
threats at union organizers while they were attempting to
campaign and distribute literature to the employees
adjacent to the Employer's property." In this regard, the
record establishes that on February 10 after Union
Representative Breshears repeatedly refused to leave the
company's property, at Foreman Villegas' request, that
Villegas lost his temper and, in the presence of employees,
called Breshears a "leech" and a "bloodsucker" and at one
point stated to Breshears, "you are going to get yours."
This conduct, especially in view of the surrounding
circumstances, did not interfere with the employees' free
choice in the representation election and I shall recom-
mend that this objection be dismissed.
Likewise, I shall recommend the dismissal of Objection
10 which alleges, in substance, that the Employer's
supervision interrogated employees in small groups about
their union sympathies and urged them to vote against the
Union. No evidence was presented in support of this
objection.
As I have found all of the objections to lack merit and as
the Union did not receive a majority of the votes cast in the
representation election, I shall recommend that the results
of the election be certified.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '5
The complaint is dismissed in its entirety.
IT IS ALSO ORDERED that the results of the election held in
Case 21-RC-14460 on February 13, 1976, be certified.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
160