Mike Yurosek & Son

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