Mike Yurosek & Sons

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 148 (N.L.R.B. 1976)

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mike Yurosek & Sons and Butchers Union Local No.
193 of the Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, Petitioner.
Case 31-RC-3118
June 24, 1976
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Pursuant to a Decision and Direction of Election
issued April 22, 1975,' by the Regional Director for
Region 31, an election was held on May 21 in the
appropriate unit, comprised of production and main-
tenance employees at the Employer's Lamont, Cali-
fornia, plant. The tally of ballots for the election
showed that of approximately 283 eligible voters 257
cast ballots, of which 132 were cast for the Petitioner,
none were cast for General Teamsters and Food Pro-
cessing Union, Local No. 87, the Intervenor herein,
97 were cast against the participating labor organiza-
tions, and 28 were challenged. The challenges were
insufficient in number to affect the results. The Em-
ployer filed timely objections to conduct affecting
the results. Because his investigation revealed con-
flicting evidence as to the conduct alleged in the
Employer's objections, the Regional Director on July
10 ordered a hearing thereon. Pursuant thereto, a
hearing was held before Hearing Officer Ronald J.
Klepetar, and on September 11 he issued his report
in which he recommended, based on his findings of
fact and conclusions, that Objection 2 be overruled
and that Objection I be sustained and a new election
directed. The Employer and the Petitioner filed ex-
ceptions to his report.
On October 24, the Regional Director issued a
Supplemental Decision and Certification of Repre-
sentative, in which he adopted the recommendations
as to Objection 2; however, disagreeing with the
Hearing Officer, he overruled Objection I and certi-
fied the Petitioner as the representative of the em-
ployees in the unit, in accord with the results as
shown by the tally of ballots. Thereafter, in accor-
dance with Section 102.67 of the National Labor Re-
lations Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for re-
view of the Regional Director's decision on the
grounds that he made factual findings which are
clearly erroneous, that he departed from precedent,
and that compelling reasons exist for reconsideration
of the policy or rule applied by him.
1 Unless otherwise indicated, all events herein occurred in 1975
By telegraphic order dated December 10, the
Employer's request for review was denied as to Ob-
jection 2 and granted as to Objection 1, and the certi-
fication issued by the Regional Director was stayed
pending decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
Objection 1, as summarized by the Regional Di-
rector, alleges.
During the pre-election critical period, employ-
ees were told by Petitioner's representatives that
if the Petitioner were to lose the election, the
Petitioner would notify the Immigration and
Naturalization Service of the existence of em-
ployees who were employees of the Employer
who were in this country illegally, thereby
threatening to cause their deportation.
The Hearing Officer found, on the basis of the
credited testimony of employees Alicia Lopez and
Maria Terezon, that fellow employees Lupe Villalo-
bos and Maria Papion, two of the six members of a
voluntary in-plant organizing committee, and anoth-
er unidentified person made threatening statements
to eligible voters to the effect that if the Union did
not win the election Immigration authorities would
come and deport those Mexican aliens who were ille-
gally in the country.' However, despite his finding
that Villalobos and Papion were not acting as agents
of the Petitioner, and that the threatening statements
could not be attributed to it, the Hearing Officer not-
ed that in Professional Research, Inc., d/b/a Westside
Hospital, 218 NLRB 96 (1975), the Board found that
a single threat of this character by a union organizer
was sufficient to warrant setting aside an election. He
therefore concluded that, given the ethnic makeup of
the Employer's work force, combined with the fact
that Immigration authorities had been to the plant
several months earlier, the character of the conduct
was so aggravated as to create an atmosphere of fear
and reprisal rendering a free expression of choice of
representative impossible.
The Regional Director disagreed with the Hearing
Officer's conclusion. Referring to testimony that
other in-plant organizing committee members had
2
The Regional Director affirmed the Hearing Officer's credibility finding
whereby he discredited the testimony of the Employer's main witness, Linda
Rivera, and the Employer did not request review of that credibility resolu-
tion The Hearing Officer also referred to certain testimony of Petitioner's
witnesses, and he noted that none of the four individuals named in the
testimony of Rivera, as making threatening statements of the same charac-
ter as above discussed, were called to testify
225 NLRB No. 20
MIKE YUROSEK & SONS 149
said that the Union would not get rid of anybody,
and that an International representative of the Union
had stated, at a well-attended organizational meet-
ing, that it did not matter if employees were illegal,
and viewing such statements as disavowals of the
aforementioned threats which tended to neutralize
any atmosphere of fear that otherwise might have
been engendered by the third-party conduct, the Re-
gional Director overruled the objection.
The Employer contends that the threats found to
have been made should be attributed to the Peti-
tioner and the record does not support the Regional
Director's conclusion that the threats were disa-
vowed by the Petitioner, i.e., the record is unclear as
to the time of the meeting at which Union Official
Fougeron made the alleged disavowal, as to whether
the meeting was "well-attended," and as to whether
he was addressing himself to threats being made to
call Immigration or to questions raised concerning
the treatment the Union would give aliens if it were
certified. The Employer argues, therefore, that the
objection should be sustained and the election set
aside on the basis of Westside Hospital, supra.
According to the credited testimony of Lopez, in-
plant committee members Villalobos and Papion
made threatening remarks while engaged in produc-
tion operations with about 10 other employees on
either side of a belt, approximately 2 weeks before
the election. She testified that Villalobos said on this
occasion "it would be better to vote for the Union,
otherwise Immigration would come to work or their
home"; and that Papion said "vote for the Union,
otherwise Immigration will take all of you." Maria
Terezon's credited testimony was that she "had
heard talk that if the Union did not win the following
day the Immigration would come in and take the
people"; that she heard this "before, during and after
the election"; that, specifically, she heard it said the
day of the election by an unidentified individual who
was in front of her in a line of around 70 employees
who were walking to work.
Review of the record also reveals the following tes-
timony by witnesses called by the Petitioner:
Herrera, an in-plant committee member, testified
she had attended "quite a few" union meetings, and
when asked if "anybody at the meeting you attended
asked anybody from the Union about Immigration
problems," she said "yes," and named Gus Fougeron
as the union official. His response, she stated was:
"that it did not matter if they were illegal or whether
you were black or blue or what. It did not matter if
they belonged to the Union. They wanted them, they
did not want to get rid of them." She stated Fouger-
on said this in English to a group of 15 to 20 workers
who could speak English and his words were not
translated into Spanish, and she added "we told
some of the Mexican workers" in Spanish.
Mary Jacuende, a union member employed by an-
other company who acted as a translator for the
Union, stated that at one of the three or four meet-
ings she attended, no union officer being present, she
recalled being asked by employees what would hap-
pen with illegal aliens if the Union got in, and she
told them "we were not Immigration officers. We did
not care where the people come from or who they
were. . . ." She told them generally if they doubted
her answers and wanted more information they
could call the union office.
Lucy Ruiz, a union member working for the same
company as Jacuende and a member of the Union's
executive board, who also acted as a translator for
the Union, testified that she talked with employees
individually apparently at the same meeting Ja-
cuende spoke of, that she was asked the same kind of
questions by three or four employees, and she gave
answers in the same vein as Jacuende's.
Alicia Roche, a dischargee who has filed an 8(a)(3)
unfair labor practice charge, was a member of the
organizing committee who also acted as a translator
at meetings. She testified she was never asked about
the Union's position on the Immigration matter, and
when asked how she felt about it, she responded: as
to whether they would be hurt or investigated, that
she did not know; and as to whether they were enti-
tled to the same thing as others, that they were. She
also testified that some of the girls wanted to turn
illegal aliens in, but she opposed them, saying "No-
we need those votes." She answered in the negative
when asked if she had heard union officers say any-
thing about Immigration people, adding: "the only
thing they said . . . is: Everybody is equal." And she
named two officers who said that at more than one
meeting.
Finally, Magdelena Gomez, a member of the orga-
nizing committee, testified that she heard "rumors
about people being scared that if the Union came in,
the Immigration would come in, or if it did not come
in, the Immigration would come in"; and that her
response would be to get a little upset and tell them
the Union's purpose was not to get rid of anybody or
call Immigration.
Our review of the record discloses no evidence that
officials of the Petitioner made any threats to em-
ployees of the type found to have been made by Vil-
lalobos and Papion or in any way led employees to
believe that they ratified or acquiesced in such
threatening statements. Contrary to the Employer's
contention, the fact that employees served as mem-
bers of the in-plant organizing committee or as elec-
tion observers does not, in the circumstances of this
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, constitute them as Petitioner's agents in the
making of threatening statements to fellow employ-
ees, and we affirm the Hearing Officer's finding that
the mere fact that some members of the organizing
committee may have engaged in such conduct, with-
out more, is insufficient to establish agency.' As not-
ed by the Hearing Officer, conduct engaged in by
third persons tends to have less effect upon voters
than similar conduct of one of the parties.' Evaluat-
ing the impact of these threats made by Villalobos,
Papion, and an unidentified person in the light of the
entire record, including the evidence that in the re-
cent past Immigration authorities had been at the
Employer's plant checking on employees who were
Mexican aliens and that rumors were afloat that the
Immigration authorities would be called if the Peti-
tioner lost-or, according to some testimony, even if
it won-we conclude that the conduct herein was not
so aggravated in character as to destroy the atmo-
sphere for the expression of employee free choice in
the election.'
l Owens -Corning Fiberglas Corporation , 179 NLRB 219 , 223 (1969 ), Cross
Baking Company , Inc, 191 NLRB 27 ( 1971), reversed on other grounds 453
F 2d 1346 (C A 1, 1971) The Employer 's request that the Board reconsider
the policy or holdings of those decisions is hereby denied
° Owens - Corning, supra , see also Orleans Manufacturing Company, 120
NLRB 630 , 633 (1958)
5 The Westside Hospital case, relied on by the Hearing Officer and the
Employer , is factually distinguishable , as there the spokesman for a group of
While the record evidence is too ambiguous to
support the Regional Director's conclusion that the
Union disavowed the threats made herein, we note
from the testimony of others who assisted in the or-
ganizational campaign that substantial efforts were
made by them to disabuse employees of the idea that
the Union would call the Immigration authorities if it
lost the election. To this extent, the impact of the
threats and rumors was lessened. In any event, we
believe illegal aliens naturally experience some fear
of detection and deportation as a consequence of
their unauthorized presence in the U.S., and we
doubt that the threats and rumors herein, considering
their source, so exacerbated these fears as to render
any illegal alien employees incapable of exercising a
free choice in the election. For these reasons, Objec-
tion 1 is overruled.
Accordingly, the Regional Director's Supplemen-
tal Decision and Certification of Representative, as
modified herein, is hereby affirmed, except that the
effective date of the certification shall be the date of
this Decision on Review.
Spanish -speaking employees was threatened with deportation by a staff rep-
resentative of the union unless he sided with the union in the election, and
the spokesman related this threat to his wife and some of his Spanish-
speaking workers The Board found this conduct to have a coercive effect
on employee free choice in the election Clearly, that case did not deal with
third-person conduct