Mike Yurosek & Sons

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