Trident Seafoods Corp.

National Labor Relations Board - Board Decisions

May 12, 1989

293 N.L.R.B. 1016 (N.L.R.B. 1989)

1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Trident Seafoods Corporation and Region 37, Inland
Boatmen 's Union, International Longshoremen's
and Warehousemen 's Union Case 19-CA-
19205
May 12, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 30, 1987, Administrative Law
Judge Arline Pacht issued the attached decision
The Respondent filed exceptions and a supporting
brief, the General Counsel filed limited exceptions
and a supporting argument, and the Charging
Party filed exceptions, a supporting brief, and a
brief in response to the Respondent's 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 as
modified,' and conclusions and to adopt the rec-
ommended Order as modified 2
The judge found the Respondent, by denying the
Unions' agents access to its cannery premises in
South Naknek, Alaska, violated Section 8(a)(1) of
the Act We adopt the judge's decision, but we
modify the judge's findings in accord with Jean
Country, supra, which clarifies the framework to
analyze whether a union has the right under Sec
tion 7 of the Act to engage in protected activity on
private property
The Respondent bought a salmon cannery in
South Naknek, Alaska, in March 1987 3 South
Naknek is a small village that is accessible from the
mainland town of Naknek by air or boat The
salmon canning season essentially occurs during the
last 2 weeks of June and all of July Employees
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The judge discusses in detail why mass media communication was not
a reasonable alternative Jean Country 291 NLRB 11 ( 1988) states that
mass media communication will be a feasible alternative only in excep
tional cases This case does not present that exception
2 The General Counsel and the Charging Party have excepted to the
judge s failure to order that posting of the notice to employees corn
mence at the beginning of the processing season rather than on receipt of
the notice from the Regional Director Because posting would be mean
ingless at a time when no affected employees are at the facility we grant
this exception and shall order the posting to commence at the beginning
of the processing season
We also shall modify the notice to conform with the recommended
Order
3 All subsequent dates are in 1987
work about 8 hours per day for the first 2 weeks of
the season and about 12-16 hours per day for the
last 4 weeks Employees live and eat on the compa-
ny premises, although they can go into "town"
when they are not working Employees have no
phone in their living quarters Mail is picked up by
the Respondent and sorted and distributed to the
employees at a central mail box According to
credited testimony, mail delivery is sporadic
The Respondent's property is not fenced, but a
sign at the main entrance prohibits unauthorized
vehicles and trespassers and requires visitors to
register In fact, according to the judge, "this
policy was followed in the breach rather than the
observance"-visitors such as villagers, employees
of other canneries, as well as the approximately 900
fishermen from the 300 independent contractor ves
sels delivering salmon to the Respondent entered
the property routinely without registering
The Unions represented the resident cannery
workers and culinary workers of the Respondent's
predecessors 4 The Unions' agents, knowing that
employees were unavailable in July and there was
no place for them to stay overnight on South
Naknek, wrote to the Respondent in early June
stating that the Union would like to meet with em-
ployees on company property, as they had done in
the past When the agents arrived on June 25, the
Respondent's superintendent told them his superi-
ors had instructed him not to allow them on the
property The Unions wrote on July 1 requesting
permission to meet employees at the facility, and
the Respondent denied the request on July 9
The judge analyzed not only the employees' Sec-
tion 7 right and the Respondent's property right,
but the existence of effective, reasonable alternative
means of communication We agree with the judge
that the employees' Section 7 right is organization-
al in nature and compelling, and that the Respond-
ent's property interest in the nonprocessing areas of
the facility is weak because of the general availabil-
ity of these areas to the public We also agree with
the judge, for the reasons set forth below, that the
Unions had no reasonable alternative means of
communication Given the lack of reasonable alter-
native means of communication, and considering
the impairment that denying access has on the em-
ployees' compelling Section 7 right, as compared
with the minimal infringement granting access im-
poses on the Respondent's relatively weak property
right, we find that the employees' Section 7 right
requires the yielding of the Respondent's property
right in this case Accordingly, we adopt the
judge's finding of an 8(a)(1) violation
* The Respondents successor status is being litigated in another forum
293 NLRB No 125
TRIDENT SEAFOODS CORP 1017
In discussing alternative means of communica-
tion, the judge credits testimony that mail delivery
at the Respondent's South Naknek facility is errat-
ic Based on this finding, we conclude that the
Unions were not required to investigate the possi-
bility of alternative sites in South Naknek because
the Unions could not be certain that employees
would receive timely notice of a meeting even if
reasonable alternative sites were available 5 Ac
cordingly, assuming the Unions could have ar
ranged for a meeting place in South Naknek at one
of the locations the Respondent suggested at the
hearing, we find that such a meeting was not a rea-
sonable alternative
For the following reasons, we find it unnecessary
to pass on the judge's statement that it was futile
for the Unions to request an employee list from the
Respondent First, as noted above, the erratic
nature of mail delivery at the South Naknek facili-
ty made it ineffective for the Unions to mail no-
tices of a meeting to employees at the Respondent's
facility Second, contacting employees before their
arrival at South Naknek was not a reasonable alter-
native means of communication because the em
ployees are widely dispersed
This case is distinguishable from SCNO Barge
Lines, 287 NLRB 169 (1987), affd sub nom Mari-
time Union v NLRB, 867 F 2d 767 (1989) In that
case, decided under Fairmont Hotel,6 the Board
denied access because the union, which had an em
ployee list, presumably could have contacted the
employees 7 SCNO involved a year-round work
force of presumably long-term employees, whereas
the employees in this case were seasonal and there
was a high rate of turnover Further, the Unions
herein first learned on June 25 that they were
denied access to the facility Given the relative un-
availability of workers once the peak canning
season began, by June 25 there was insufficient
time to arrange for off-premises employee contact
Moreover, there is no evidence of prior union suc-
cess in contacting employees at home that would
indicate that such contact was a reasonable alterna-
tive means See G W Gladders Towing Co, 287
NLRB 186 (1987) Finally, we note that granting
access in SCNO would have involved allowing the
union into an area used exclusively for business
purposes and risking interference with productivi
ty In this case, as noted above, granting access in-
volves only allowing the Unions into nonproduc-
tion areas frequently used by employees and non
employees alike Accordingly, the Respondent's re-
liance on SCNO is misplaced
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent, Trident Seafoods Corporation, South
Naknek, Alaska, its officers, agents, successors, and
assigns , shall take the action set forth in the Order
as modified
I Substitute the following for paragraph 2(b)
"(b) Post at its facility at South Naknek, Alaska,
and such other places where notices to employees
and employee applicants are posted, copies of the
attached notice marked "Appendix "19 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 19, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent at the beginning of the
peak processing season and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees and job appli
cants are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any
other material "
2 Substitute the following for paragraph 2(c)
"(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply "
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
s Thus we find it unnecessary to rely on the Unions actual efforts to
locate alternative sites which were made only in preparation for trial
For similar reasons we also find it unnecessary to rely on the judge s
presumption that the South Naknek gym did not come outfitted with
chairs
8 282 NLRB 139 (1986)
7 Member Johansen adheres to his dissent in SCNO and agrees with
the U S Court of Appeals for the Second Circuit that an employers fur
nishmg a union with a list of names and addresses for telephone solicits
tion mailings and invitations to meetings under circumstances like these
that do not allow a fair opportunity for face to face contact with employ
ees is not a reasonable alternative to granting union organizers access to
the workplace Maritime Union v NLRB 867 F 2d 767 (2d Cir 1989)
Member Cracraft did not participate in SCNO and finds it unnecessary
to pass on the merits of that case inasmuch as this case is factually distin
guishable from SCNO
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
WE WILL NOT continue or give effect to policies
or rules pursuant to which IBU and AFU repre-
sentatives have been denied access to our resident
workers in nonprocessing areas of the company
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
premises, for the purpose of soliciting these em-
ployees during their nonworking time, or for the
purpose of consulting, conferring, advising, assist
mg, or otherwise communicating with them in non
processing areas during their nonworking hours in
regard to their statutorily guaranteed right of self-
organization, provided, however, that nothing con
tained herein shall be construed to prohibit us from
making and enforcing reasonable regulations with
respect to visits by such nonemployee union repre-
sentatives
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of rights guaranteed you by Section 7 of the
Act
WE WILL, if requested by the IBU and/or AFU,
grant the Unions' representatives access rights to
the Company's nonproduction facilities for the pur-
pose of distributing union literature, soliciting
union membership, holding union meetings, or for
the purpose of consulting, conferring, advising, as-
sisting, or otherwise communicating with employ-
ees on our property in South Naknek, Alaska,
during nonworking hours, subject only to reasona-
ble regulations concerning such visits
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent, a Washington corporation with an office
and place of business in South Naknek, Alaska, is en
gaged in processing salmon During the past 12 months,
a representative period, Respondents business operations
resulted in gross sales of goods and services valued in
excess of $500,000 During the same time period, Re
spondent sold and shipped goods or provided services
from its facilities in Alaska to customers outside the State
or to customers within the State who were directly en
gaged in interstate commerce, for a total value exceeding
$50,000 Additionally, during the past 12 months, Re
spondent purchased and received at its Alaskan facilities
goods valued in excess of $50,000 from sources outside
the State or from suppliers within the State who ob
tained the goods and materials directly from sources out
side the State
Accordingly, the complaint alleges , the Respondent
admits, and I find that Trident Seafoods Corporation is
an employer within the meaning of Section 2(2), (6), and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The IBU and the Alaska Fishermen's Union (AFU)
are and have been at all times material, labor organiza
tions within the meaning of Section 2(5) of the Act
TRIDENT SEAFOODS CORPORATION
Catherine Roth Esq, for the General Counsel
William Grimm Esq (Davis Grimm and Payne), of Seat
tle, Washington, for the Respondent
Robert Gibbs Esq (Gibbs Douglas Theiler and Dracher),
of Seattle, Washington, for the Charging Party
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge Pursuant
to a charge filed on 16 June 1987 1 by Region 37 Inland
Boatmen s Union International Longshoremen s and
Warehousemen's Union (the IBU), a complaint issued on
29 July alleging in substance that Trident Seafoods Cor
poration (the Respondent)2 violated Section 8(a)(1) of
the National Labor Relations Act as amended (the Act)
by refusing to permit union agents to meet with its rest
dent employees on company property for organizational
purposes The Respondent filed a timely answer admit
ting that it had refused access to the union agents but de
vying that it had violated the Act The hearing was held
before me on October 15 and 16 in Seattle, Washington
On the entire record, including my observation of the
witnesses and on consideration of the briefs filed on
behalf of the General Counsel, the Respondent and the
Charging Party I make the following
r The parties stipulated that the corporation s name was changed from
Trident Two to Trident Seafoods
2 Unless otherwise indicated all events took place in 1987
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Setting
In March 1987, Trident Seafoods purchased a salmon
cannery from the Sea Alaska Corporation The facility is
located in South Naknek, Alaska, a relatively isolated
and remote fishing village located on the Naknek River,
which flows into Bristol Bay The village, which consists
of a cluster of approximately 30 houses, a bar, school,
community hall general store, and church is separated
from the town of Naknek by the river and, thus, is acces
sible only by sea or air Given the remoteness of the fa
cility, Respondent transported all employees to and from
South Naknek by chartered plane at the beginning and
end of the short salmon season which lasts from mid
June to late July
Respondents labor force was drawn principally from
the northwest States of Washington, Oregon, and Cali
fornia Other employees came from locations throughout
the State of Alaska a few came from as far as Illinois
Florida, and Hawaii The employees were generally
youthful, many were working their way through college
During the 1987 season the total work force numbered
150 employees including supervisors Respondents plant
superintendent, Gary Johnson, who held the same post
tion under the predecessor estimated that 60 percent of
the 1987 work force were new employees However,
Thomas Wilson, a cannery employee for the past 3 years
believed that the percentage actually ranged from 60 to
80 percent
Throughout the salmon season , the employees lived in
what was in fact a self contained community On their
TRIDENT SEAFOODS CORP
arrival at the facility, employees were assigned to rooms
in the Company's six bunkhouses which accommodated
all the work force, including supervisors and 50 to 60
fishermen They took all their meals in the company caf
etena The compound also contained a recreation room
with a single television set which received broadcasts
from an Anchorage station 3 Employees had no tele
phones in their rooms Instead, two public pay phones
were available, one was located on the Company's dock
and another at the mailroom Under special circum
stances, Superintendent Johnson also permitted employ
ees to use the third telephone in his office The regulan
ty of mail delivery was disputed According to Tom
Wilson, mail was received sporadically Johnson main
tained, however, that an office worker collected mail
from a post office on a daily basis She then sorted and
distributed it into open alphabetized slots so that employ
ees with the same last initial found their mail grouped to
gether Although the mail may have been collected as
regularly as Johnson claimed, I am inclined to credit
Tom Wilson's statement that it was not received with
consistent promptness, because a memo prepared by Re
spondent forewarned job applicants that "mail delivery is
very erratic "4
For the first 2 weeks following their arrival at the can
nery, employees worked from 8 am to 5 p m, perform
ing general cleanup tasks in preparation for the influx of
salmon During these early weeks, employees were free
to leave the compound after their shift was over This
moderate pace changed radically when the salmon run
began in earnest in early July For the balance of the
month, employees worked a 12 to 16 hour day, 7 days a
week, with little spare time or energy for extracurricular
activities
The main and possibly only paved road in South
Naknek led through an open gate into the compound and
past a building on which posted signs stated "No unau
thorized vehicles on the cannery property, all visitors
must check into the office, private property, no trespass
ing, no three wheelers beyond this point " (See Tr, vol
I, 137-138) Johnson explained that these signs actually
were intended to prevent vehicles from entering the
compound and interfering with the movement of forklifts
or garbage trucks
Johnson further testified that in accordance with these
signs and with company policy visitors were supposed
to sign in at the cannery office and were permitted to
remain only if they had a legitimate business purpose In
fact, the evidence shows that this policy was followed in
the breach rather than the observance No fence bor
dered the cannery's perimeter, and no guards secured the
premises Moreover, Johnson conceded he did not patrol
the compound and could not identify all those who en
8 Johnson indicated that programs from three television networks were
received Tom Wilson testified that there was only one television station
However after careful examination I find no contradiction in their testi
mony I infer that Johnson meant that the Anchorage station served as a
conduit transmitting broadcasts from a few networks in the lower 48
States
4 Respondents office manager Rosemary Wilson testified that parts of
this memo did not pertain to the South Naknek cannery but she did not
indicate that the comment about mail delivery was inapplicable
1019
tered Consequently, pedestrians could and did roam the
facility with apparent freedom
By far the largest group of visitors to the cannery
were crewmembers from 300 fishing vessels under inde
pendent contract with Respondent Periodically during
the salmon season, these boats, each with a skipper and a
two to three man crew, moored at Respondent's dock to
replenish supplies During these visits , the 900 or more
fishermen were at liberty to use the Company s facile
ties-that is, the showers, recreation room, laundry, com
pany store and cafeteria 5 They also could visit resident
cannery workers in the bunkhouses In addition, villagers
and workers from another cannery and a fishing supply
depot several miles away had access to the various non
processing areas of the cannery Thus, literally hundreds
of nonemployees entered Respondent's property without
restraint Indeed, the only evidence that Respondent
ejected unwanted visitors came from Johnson's testimony
that he had a local police officer escort one or two me
briated fishermen back to their boats at the end of the
season
In addition to its official no trespassing policy, Re
spondent also published in its employee handbook a no
solicitation rule which forbid any solicitation or distribu
tion by nonemployees on company property and by em
ployees during working times in working areas These
rules were posted at several locations in the facility 6
B The Union's Agents Are Denied Access to
Respondent's Property
For approximately 40 years prior to Respondent s
takeover, the IBU and AFU represented bargaining units
at the cannery, most recently, the resident cannery work
ers and the culinary workers 7 For the past year or two,
Mark Coles, secretary treasurer of the AFU, and David
Della, IBU patrolman/business agent, traveled together
to South Naknek to meet with employees covered by
collective bargaining agreements with Respondent's
predecessor 8 Both representatives had a number of
other facilities to visit in various regions of Alaska They
also were aware that the South Naknek cannery workers
were unavailable during the peak season in July As
there was no hotel in South Naknek, the union agents
5 Respondent issued a pass similar to a charge card to the skipper of
each vessel which could be used to charge purchases at the company
store Because only one such card was assigned per boat they could not
possibly have served as a means of identifying the hundreds of crewmem
bers who used Respondents facilities
e The no solicitation rule stated in pertinent part
Nonemployees are not allowed at any time to come upon our prem
ises for the purpose of solicitation or literature distribution This
policy is to restrain third parties or strangers from soliciting or hand
mg out materials for political union charitable or similar activities
This rule followed immediately after another provision in the hand
book titled Employee Communications which stated inter aha We
believe very strongly that the inflexible and impersonal structure that
labor unions bung with them has no place in our business The rule then
advised employees that no one can legally force you to sign a union
authorization card See R Exh 5
7 In the past the Unions also represented the company owned tender
boat crewmen
a The AFU had represented approximately 50 cannery workers hired
in Alaska while the IBU had represented 80 to 100 workers hired outside
the State
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could not remain overnight Thus their mission had to
be accomplished in a single day Given these constraints,
Della and Coles met only once with the employees
during the last 2 weeks of June
When they arnved the union representatives adver
tised the forthcoming meeting by word of mouth and
also posted notices announcing the time and place of the
meeting These annual meetings were held after produc
tion hours either in the cafeteria or the recreation room,
neither of which is in the immediate vicinity of the proc
essing building Johnson did not object to the agents ac
tivity and acknowledged that their visits had posed no
problem
After the AFU was notified of the change in owner
ship in the spring of 1987, Coles wrote to the 1986 unit
members using their last known home addresses and ad
vised them of the acquisition In early June, the AFU
sent a questionnaire to these some members asking them
to advise the union of their employment plans Thirteen
members responded Ten members stated that they
would not be returning two of the three who said they
would return did not, and a third who did return was as
signed to another of Respondents installations
In early June the Union wrote to advise the Respond
ent that Coles and Della would again visit the facility
The two union representatives arrived at South Naknek
on June 25 Because Respondent had denied that it was a
successor and had refused the Unions request to bargain,
the agents purpose on this occasion was to reorganize
the employees 8
In 1987, as in the previous year, Della and Coles first
flew from Seattle to King Salmon Alaska, and then
rented a car to drive to Naknek There, they arranged to
fly to South Naknek on Penninsula Airways, an air taxi
service at a one way cost of $30 each The entire trip
takes approximately 4 1/2 hours
On their arrival at the cannery, they met with Johnson
and requested permission to meet with the employees on
Respondent's premises Johnson told them that he had
been instructed by his superiors not to allow them onto
the property He then telephoned Penninsula Airways
for Della and Coles and drove them to the plane imme
diately thereafter By letter dated July 1, counsel for the
IBU and AFU again wrote to Respondent requesting
permission to meet with employees at the cannery for or
ganizing purposes Respondent denied the Unions re
quest by letter of July 9
C Respondent Proposes Alternative Channels
Respondent contends that the Unions could have lo
cated other facilities in South Naknek to hold a meeting
with the employees, specifically a bar and cafe called the
Gin Mill the community hall, or the school gymnasium
The testimony about the availability and utility of these
sites was in dispute Johnson stated that during a chance
encounter with a Greg Chilcott owner of the Gin Mill
and a member of the village council he learned that the
bar could be rented when business was slack The Gin
Mill not only catered to the Respondent's employees but
9 Respondents status as a successor under the Act is not at issue in this
proceeding but is being litigated in another forum
to villagers fishermen and workers from another compa
ny near South Naknek This popular is somewhat noton
ous drinking place had patrons at all hours of the day
and night, from the time of opening at 11 a m to its clos
ing at 2 or sometimes 5 a m During the first 2 weeks of
the salmon season, up to 90 to 95 percent of Respond
ent s employees visited the place, though not all at the
same time Tom Wilson, who left Respondents employ
and worked as a bartender at the Gin Mill for the last 4
weeks of the 1987 season, estimated that 5 to 15 percent
of Respondents employees might turn up there at any
one time, except on Sunday when, according to Rose
mary Wilson, it was less busy
Testimony concerning the availability of the school
gymnasium and village community hall also was in con
flict Johnson testified that he thought the gym was
available because he had played basketball there with
some employees on a few occasions during the 1987
season Office Manager Wilson added that application to
the Bristol Bay school district or the park and recreation
Department in Naknek was necessary to obtain use of
the gym However, Tom Wilson reported that village
children had assured him the gym was closed during the
1987 season
With respect to the community hall, Rosemary Wilson
testified that she learned from a former employee of the
South Naknek village council that the room was avail
able on application to the council by a responsible
person
AFU Representative Coles indicated that his efforts to
find alternative sites in South Naknek had proved fruit
less Thus, he related that prior to the trial in this case,
he had telephoned the Naknek burrough manager who
advised him that the South Naknek village council was
inactive and, therefore, it was difficult to contact any of
its members He suggested that Coles might try to tele
phone village council member Greg Chilcott about the
availability of the village community hall which he de
scribed as having a seating capacity of no more than 30
to 40 Coles then attempted to call Chilcott but failed to
reach him
IV DISCUSSION AND CONCLUDING FINDINGS
A Introduction Applicable Principles
In deciding whether Section 7 activity may take place
on an employer's property the parties competing inter
ests must be carefully evaluated for [t]he basic objective
of the Act [is] the accommodation of § 7 rights and pn
vate property rights with as little destruction of one as is
consistent with the maintenance of the other' The locus
of that accommodation however, may fall at differing
points along the spectrum depending on the nature and
strength of the respective § 7 rights and private property
rights asserted in any given context' Hudgens v NLRB,
424 U S 507 522 (1976) quoting NLRB v Babcock &
W i l c o x C o, 351 U S 105, 112 (1956) Pursuant to these
decisions the Board recently articulated guidelines to be
used in resolving conflicts between property rights and
employee rights under the Act In Fairmont Hotel 282
NLRB 139, 142 (1986), the Board stated that the first
TRIDENT SEAFOODS CORP
step is to weigh the relative strength of each party s
claim in the following manner
If the property owners claim is a strong one while
the Section 7 right at issue is clearly a less compel
ling one, the property right will prevail If the
property claim is a tenuous one and the Section 7
right is clearly more compelling then the Section 7
right will prevail Only in those cases where the re
spective claims are relatively equal in strength will
effective alternative means of communication
become determinative
The Board proposed that the following factors should
be considered in assessing the strength or weakness of
the property right the use to which the property in
question is put, any restrictions placed on public access
to the property or to the facility located on the property,
and the size and location of the private facility The fac
tors to be considered in evaluating the Section 7 right in
clude the nature of the right asserted, the purpose for
which it is being asserted, the employer that is the target
of the activity, the situs of the activity and the relation
ship of the situs to the target, the intended audience of
the activity, and possibly the manner in which the right
is being asserted Ibid
B Application of Fairmont to the Facts of this Case
1 The Union s claim is clearly compelling
On applying the principles of Fairmont Hotel to the
facts of this case, I find for the reasons stated below
that the Section 7 organizational right at stake here is
clearly more compelling' than Respondents property
claim
Respondent contends that it has demonstrated a strong
private property right In support of its contention, Re
spondent relies on its posted signs its purported practice
of excluding unwanted visitors and its alleged uniform
enforcement of a no solicitation rule However the total
ity of the evidence fails to support Respondents exagger
ated claim To the contrary, the record in this case estab
lashes beyond doubt that Respondents practices contra
dicted its official exclusionary policies
Villagers, workers fishermen from other facilities and
the literally hundreds of fishermen whose boats moored
at Respondents dock roamed freely in the compound
throughout the salmon season They socialized with rest
dent cannery workers in their bunkrooms and had unre
stncted access to other nonproduction areas io
Respondents claim that a police officer was called on
periodically to expel unwanted visitors vastly overstates
the matter At best the evidence shows that late in the
season a police officer was called on to escort one or
two intoxicated fishermen off the premises, more for the
sake of the besotted individuals than as a protective secu
my measure Thus Respondents assertion that it uni
formly consistently and unequivocally excluded
unwanted visitors has no factual foundation
10 Meal tickets had to be purchased at the cafeteria but Respondent did
not suggest that tickets were limited to employees
1021
The record also contradicts Respondents assertion
that it posted signs to prohibit trespassers as a bona fide
safety measure for Superintendent Johnson admitted that
these signs were aimed at vehicular not pedestrian traffic
Given the substantial number of outsiders who entered
the compound without restraint Respondents alleged
safety concerns could not have been grave, or have any
bearing on the exclusion of the two union agents
Respondents claim that it applied its no solicitation
rule in a uniform manner was equally unpersuasive The
record shows that the rule was invoked only once-to
deny access to Coles and Della A single experience is
not a statistically significant datum on which to base a
claim of uniform enforcement
Respondents cannery may not be as public as a store
in a large shopping center or an arcade which bisects an
office complex (See, e g , Emery Realty Corp, 286
NLRB 372 (1987)) Nevertheless, a fair reading of the
record leads to the conclusion that the nonprocessing
areas of Respondents cannery were available to the
public such as it was in remote South Naknek, Alaska
In sum , I find that Respondent has failed to prove that
its policy against nonemployee visitation was stringently
enforced or bore any relationship to legitimate safety
concerns Consequently I conclude that Respondents as
serted private property claim is relatively weak in the
circumstances of this case
In contrast, the Section 7 right assured to the Union
on behalf of employees was clearly compelling As the
Board recently stated in Emery Realty, supra the Sec
tion 7 right of employees to organize which the Union
here seeks to assert through its organizational solicita
tions lies at the very core of the interests the National
Labor Relations Act seeks to protect 11 Indeed, the
right to self organization to form, join or assist labor or
ganizations is so fundamental a guarantee that without
it, other guarantees would have little meaning
The Supreme Court has long recognized that organi
zation rights are not viable in a vacuum their effective
ness depends in some measure on the ability of employ
ees to learn the advantages and disadvantages of organi
zation from others Central Hardware Co v NLRB 407
U S 539, 543 (1972) In this regard the role of profes
sional organizers can be critical in assuring the full meas
ure of organizational rights guaranteed to employees for
their special training and experience enable them to
inform the employees as to the benefits of union organs
zation Accordingly Section 7 guarantees both the right
of union officials to discuss organization with employees
and the right of union officials to discuss organization
among themselves Id at 542 Accord, Emery Realty
supra The assistance of experienced organizers was espe
cially necessary here where Respondents work force
was youthful and unseasoned
Moreover the record establishes that the extent and
duration of organizational activity was necessarily limit
ed by conditions beyond the Unions control As a prat
tical matter, the IBU and AFU representatives had only
11 Quoting Sears Roebuck & Co Y San Diego County District Council
of Carpenters 436 US 180 206 fn 42 (1978)
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 day available for campaigning during the brief 2 week
period before the peak salmon season Further, Coles and
Della had conducted meetings in the past in nonwork
areas of the cannery without creating any problems
Given these circumstances, Respondent cannot seriously
maintain that granting access to the Unions agents
would disrupt its operations or interfere significantly
with its private property interests
Other considerations outlined in Fairmont strengthen
the compelling nature of the Unions claim The immedi
ate beneficiaries of the Section 7 activity were the Tri
dent employees, the situs of the activity served as both
residence and workplace for the work force, the primary
and sole target of the activity was the Respondent Thus
the relationship between audience, situs, and target could
not be more direct
In sum, all the factors which should be weighed to
assess the strength or weakness of the respective claims
lead to the conclusion that there is no more compelling
Section 7 interest than the one asserted by the Unions in
this case Because the rights asserted by the parties in in
terest were not equal it is unnecessary under Fairmont to
consider whether the Unions had alternative means of
communicating with the employees Accordingly, I find
that the Respondent violated Section 8(a)(1) of the Act
by prohibiting IBU and AFU representatives from meet
ing with employees in nonproduction areas on its prem
ises for organizational purposes See Emery Realty, supra
2 The Unions did not have reasonable alternative
means of communication
Even assuming that the parties claims were in equi
poise as the Respondent contends, I would find that the
Unions did not have reasonable, alternative means to
communicate their message to Respondents employees
The General Counsel and Charging Party submit that in
determining whether the Unions had effective options to
reach the employees, the Respondents remote and isolat
ed location must be taken into account The Respondent
denies that the cannery was inaccessible and that in any
event alternative meeting sites and other forms of com
munication were available
An analysis of whether the Unions had reasonable and
effective alternative channels of communication starts
with the seminal case of NLRB v Babcock & Wilcox Co
351 US 105, 111-112 (1965), in which the Supreme
Court drew a distinction between those cases in which
employees live near the employers plants in well set
tled communities and other cases in which the employ
ees [are] insulated from normal contacts , citing, as an
example NLRB v Lake Superior Lumber Corp, 167 F 2d
147, 151 (6th Cir 1949) In the former, more convention
al context, the Court observed that employees could be
reached by [t]he usual methods of imparting informa
tion namely, by personal contacts on streets or at
home, by telephone calls, letters, or advertised meetings
In the latter situation, however, the location of [the]
plant and living quarters of the employees places the em
ployees beyond the reach of reasonable union efforts to
communicate with them through the usual chap
nels 351 U S at 112-113 The Supreme Court ruled
that in such circumstances, the union is entitled to access
to the employer s premises to discuss unionism with the
employees 12
In a more recent decision Husky Oil NPR Oper
ations v NLRB 669 F 2d 643 (10th Cir 1982), the court
enforced the Boards Order (245 NLRB 1979) allowing
union access to a remote and isolated petroleum explora
tion worksite The Husky Oil camp, more than 600 miles
distant from Anchorage, could be reached only by plane
Most employees worked 4 consecutive weeks and then
left for 2 week home visits The court rejected the em
ployer' s argument that the union could have met em
ployees at the Anchorage airport or at their homes,
agreeing with the Board that these proposed alternatives
were difficult and ineffective Id at 647
In reaching this conclusion, the Tenth Circuit ob
served that other lower courts
have placed considerable importance on face to face
contact between union organizers and employees,
especially when other forms of communication are
ineffective or inexpensive NLRB v Tamiment Inc
451 F 2d 794 798 (3d Cir 1971) (no substitute for
face to face contact), cert denied 409 U S 1012
(1972), NLRB v S & H Grossingers Inc, 372
F 2d 26, 29 (2d Cir 1967 ) (radio and newspaper ad
vertising expensive and relatively ineffectual ), cf
NLRB v United Aircraft Corp, 324 F 2d 128 130
(2d Cir 1963) ( predictable alternatives to person
al contact bear without exception the flaws of
greater expense and effort, and a lower degree of
effectiveness ) Id at 646
Similarly , in an earlier case Alaska Barite Co, 197
NLRB 1023 (1972) enfd mem 83 LRRM 2992 (9th Cir
1973) cert denied 414 U S 1025 (1973), employees
worked a 5 day week at a mining camp on a remote
island off the Alaskan coast One half of the work force
returned to their homes in Petersburg on weekends and
other employees spent occasional weekends there as
well Id at 1024 Despite the fact that many of the em
ployees were at the same nonworkplace location on
weekends the Board with court approval, held that
union access to the employees property was warranted
because other adequate channels of communication
with employees were not demonstrably available Id
at 1027 The Board also concluded that the union was
not required to engage in a costly and fruitless gesture to
demonstrate that they had unsuccessfully exhausted other
avenues of communication See also Husky Oil v NLRB
supra at 645 NLRB v S & H Grossinger s 372 F 2d 26
29-30 (2d Cir 1967) (employer which operated a moun
tarn resort where 60 percent of employees resided on
hotel property and only left premises for brief periods
violated Section 8(a)(1) by excluding nonemployee union
organizers)
In the instant case, Respondent's employees were even
more removed from their year round residences than
were the employees in Husky Oil and Alaska Barite
12 The Babcock & Wilcox decision was reaffirmed in Central Hardware
Co supra at 543-545 and Sears Roebuck & Co Y San Diego County
Council of Carpenters supra
TRIDENT SEAFOODS CORP
Unlike the employees in those cases the Trident workers
were confined to their remote outpost and immediate en
virons for the entire 6 week employment season Thus,
the possibility of home visits by the Unions representa
tives would have been exceedingly difficult
Respondent submits that face to face contact with the
employees was possible at a few sites in the South
Naknek village But the record evidence establishes that
these few potential alternatives were difficult to obtain
and presented obstacles to effective communication 13
Respondent's own witnesses revealed that even for
those who were living in South Naknek, contacting the
appropriate persons to reserve the facilities was not an
easy matter Certainly, such problems would be com
pounded for the union agents whose offices were in Seat
tle Even assuming that one could successfully reach the
necessary persons, the Gin Mill could be rented only on
rare occasions when business was slow More typically,
especially during the first 2 weeks of the season when
workers had some free time , the Gin Mill was noisy and
crowded 14 It is not obvious that the Gin Mill would
naturally have suggested itself to anyone as a suitable
meeting place for organizational purposes The commu
nity hall held only 30 to 40 persons and the school gym,
even if available and large enough, presumably did not
come outfitted with chairs Thus, none of these accom
modations provided a relaxed atmosphere in which em
ployees could reach a reasoned decision See Kutsher's
Hotel & Country Club, 175 NLRB 1114 (1969), enf
denied 427 F 2d 200 (2d Cir 1970)
Beyond these difficulties, an even greater obstacle con
fronted the union organizers in attempting to meet with
employees away from the Respondents premises They
simply had no effective way to notify the 1987 resident
employees that a meeting would take place The AFU s
efforts to write to its 1986 members at their home ad
dresses before the season started proved to be totally un
successful Thus the Unions did not know if any of their
former members would be hired by Respondent and
return to the cannery in 1987 Therefore, letters notify
ing employees of a forthcoming meeting would have to
be addressed impersonally and sent in care of the can
nery Because of the manner in which mail was dis
bursed the Unions could not be certain that their litera
ture would reach the employees In these circumstances
communicating by mail was hardly an effective way to
reach Respondents employees See Husky Oil supra at
648 It would be wholly unreasonable to insist that the
IBU and AFU representatives make the arduous trip to
South Naknek with no assurance that the cannery em
ployees had received notice of a meeting
Other methods of communication which might prove
reasonable in a conventional urban setting were ineffec
tive in Respondents remote and isolated location As in
Husky Oil, the cannery employees here did not have in
13 Respondent also suggests that meeting places were readily available
in the community of Naknek This suggestion cannot be taken seriously
because to hold meetings there the Union would have been required to
provide costly air transportation for approximately 100 employees
14 Because Respondents employees did not wear uniforms after work
they could not be readily distinguished from the many other patrons of
the Gin Mill
1023
dividual telephones in their bunkrooms Instead public
telephones were only available in public places If the
Union called the facility it can be presumed that employ
ees would have to be paged in some manner or given a
message to return the call at a later time Television
commercials or newspaper advertisements would be no
less costly to the Unions in this case than they were in
Husky Oil in which the court ruled they were not a rea
sonable means of communication See 669 F 2d at 647 fn
4 Moreover, there would be no guarantee that advertise
ments of any sort would reach their intended audience
Even apart from these limitations, the Board and the
courts have recognized that media communication is in
herently less effective than face to face encounters As
the Second Circuit stated in NLRB v United Aircraft
Corp , 324 F 2d 128, 130 (2d Cir 1963), cert denied 376
us 951
[T]he predictable alternatives [to personal contact]
bear without exception the flaws of greater expense
and effort, and a lower degree of effectiveness
Mailed material would be typically lost in the daily
flood of punted matter which passes with little
impact from mailbox to wastebasket Television and
radio appeals where not precluded entirely by cost,
would suffer from competition with the family s fa
vorite programs, and at best would not compare
with personal solicitation Newspaper advertise
ments are subject to similar objections 15
Respondent also contends that the Unions did not even
attempt to determine whether alternative means were
available and therefore, failed to sustain their burden of
proving that it made reasonable attempts to seek alterna
tive channels of communicating with Respondents em
ployees other than direct access to Respondents prem
ises 16 In addressing this same argument in Emery Realty,
supra fn 13, the Board agreed with the court of appeals
which stated in Husky Oil that Babcock and Wilcox does
not require a union to resort to unsatisfactory means of
communication and we may assess the channels
available to the union without first requiring the union to
try them The Board further noted in Emery Realty that
The union s organizational effort or lack of it how
ever remains a factual circumstance to be weighed
in deciding if the union has met its burden of proof
In other words with respect to the reasonable
alternative means inquiry there are some instances
in which the reasonableness of suggested alterna
tives can be assessed on the basis of objective evi
dence even without the Union s having attempted
to use those means while in other instances the
General Counsel will not have carried the burden
15 Accord Alaska Barite Co supra at 1028-1030
16 Respondent faults the Unions for failing to request the names and
addresses of the 1987 employees Given Respondents unconcealed an
tiunion posture as evidenced by a statement in the employee handbook it
is hardly necessary to insist that the Unions make a futile request which
certainly would have been denied Compare Husky Oil supra at 648 in
which the employor voluntarily gave the union the names home address
es and telephone numbers of all 45 of its employees
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of showing absence of reasonable alternative means
if the Union has not attempted to use a particular
suggested nonencroaching method of communicat
ing its message and demonstrated that such a
method is not a reasonable means Ibid
In the present case as in Husky Oil and Emery Realty,
the record provides sufficient facts concerning the em
ployees geographic isolation and the availability of alter
natives to convince me that the Union did not have to
exhaust every possibility and engage in expensive, ulti
mately futile gestures to prove that the alternative modes
of communication proposed by Respondent were unrea
sonable
In conclusion, I find that the Unions had no effective
alternatives to convey their message to Respondents em
ployees other than conducting organizational activity on
Respondent s premises
CONCLUSIONS OF LAW
1 Trident Seafoods Corporation is an employer within
the meaning of Section 2(2) of the Act and is engaged in
commerce and in an industry affecting commerce within
the meaning of Section 2(6) and (7) of the Act
2 The Unions are labor organizations within the
meaning of Section 2(5) of the Act
3 By denying the IBU and AFU nonemployee orga
nizers access to its employees at its cannery in South
Naknek Alaska, Respondent has interfered with re
strained, and coerced its employees in the exercise of
their rights guaranteed by Section 7 of the Act thereby
violating Section 8(a)(1) of the Act
4 The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent unlawfully denied
Region 37 Inland Boatmen s Union, and the Alaskan
Fishermen s Union access to its employees on its prem
ises, I shall order that the Respondent grant such access
to the Unions nonemployee organizers subject to rea
sonable regulations
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed17
1 Cease and desist from
(a) Continuing or giving effect to policies or rules pur
suant to which IBU and AFU representatives have been
denied access to its resident workers in nonprocessing
areas of the company premises, for the purpose of solicit
ing these employees during their nonworking time, or for
the purpose of consulting, conferring, advising, assisting
or otherwise communicating with them in nonprocessing
areas during their nonworking hours in regard to their
statutorily guaranteed right of self organization, provid
ed, however, that nothing contained here shall be con
strued to prohibit Respondent from making and enforc
ing reasonable regulations with respect to visits by such
nonemployee union representatives
(b) In any like or related manner interfering with, re
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) If requested by the IBU and/or AFU, grant the
Unions representatives access rights to the Company s
nonproduction facilities for the purpose of distributing
union literature, soliciting union membership, holding
union meetings or for the purpose of consulting, confer
ring advising, assisting , or otherwise communicating
with employees on Respondents property in South
Naknek Alaska, during their nonworking hours, subject
only to reasonable regulations concerning such visits 18
(b) Post at South Naknek, Alaska copies of the at
tached notice marked Appendix 19 Copies of the
notice, on forms provided by the Regional Director for
Region 19 after being signed by the Respondents an
thonzed representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the 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 Re
spondent has taken to comply
ORDER
The Respondent, Trident Seafoods Corporation South
Naknek, Alaska, its officers, agents successors and as
signs, shall
17 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
18 The General Counsel has requested that the order in this case
should include a visitatonal provision authorizing the Board to engage in
discovery to monitor compliance with its Order However the Order in
this case which simply requires that the Respondent grant access can be
monitored easily by the Union Therefore because a visitatonal clause
appears to be unnecessary I deny the General Counsels motion
19 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