Chugach Alaska Fisheries, Inc.

44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chugach Alaska Fisheries, Inc. and Alaska Council, International Longshoremen's & Warehouse- men's Union Morpac, Inc. and Alaska Council, International Longshoremen's & Warehousemen's Union North Pacific Processors and Alaska Council, Inter- national Longshoremen's & Warehousemen's Union St. Elias Ocean Products , Inc. and Alaska Council, International Longshoremen's & Warehouse- men's Union. Cases 19-CA-14146, 19-CA- 14147, 19-CA-14148, and 19-CA-14149 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On January 21, 1983, Administrative Law Judge Harold A. Kennedy issued the attached decision. The General Counsel and Respondent Morpac, Inc. (Morpac) filed exceptions and supporting briefs, Respondents Chugach Alaska Fisheries, Inc. (Chugach), Morpac, North Pacific Processors (North Pacific), and St. Elias Ocean Products, Inc. (St. Elias) (collectively the Respondents) filed a brief in support of the judge's decision and an an- swering brief, and the General Counsel filed cross- 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 and conclusions only to the extent consistent with this Decision and Order. I. ACCESS Alaska Council, International Longshoremen's & Warehousemen's Union (the Union) sought access to the Respondents' premises for organizing pur- poses prior to a National Labor Relations Board election conducted in 1981 . The complaint alleged that the Respondents' denial of access violated Sec- ' At the beginning of the hearing the General Counsel moved to amend the complaint to add certain 8(a)(1) allegations . The judge denied the motion, finding that the Respondent affected by the motion was enti- tled to 10 days in which to file an amended answer under the Board's Rules and Regulations Although a respondent is not necessarily entitled to 10 days to file an amended answer in these circumstances , Sec. 102.23 of the Board's Rules and Regulations provides that a respondent may, in a case in which the complaint has been amended, amend its answer "within such period as may be fixed by the administrative law judge." Therefore, we find that the grant of 10 days in which to amend the answer was within the judge's discretion, and we affirm his denial of the General Counsel's motion. In so doing we note that the General Counsel declined to move to adjourn the hearing for 10 days. tion 8(a)(1). The judge found that Respondents Chugach, North Pacific, and St. Elias did not vio- late the Act by denying access reasoning that the Union had made insufficient efforts to gain access to their employees by alternative means of commu- nication. He found, however, that Respondent Morpac did violate the Act by denying the Union access to its premises because the Union had been unable by diligent efforts through alternative means of communication to gain access to its employees. For the reasons stated here, we find that Respond- ents North Pacific and St. Elias, in addition to Re- spondent Morpac, violated Section 8(a)(1) by deny- ing the Union access. After the judge issued his decision in this case, we set forth in Jean Country2 the analysis that we would utilize in determining how to accommodate the exercise of rights guaranteed by Section 7 with a property owner's right to protect property from uninvited intrusions . We concluded, [I]n all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the prop- erty right if access should be granted. We view the consideration of the availability of reasonably effective alternative means [of access] as especially significant in this balanc- ing process.3 In assessing the weight to be given property rights, we may consider "the use to which the property is put, the restrictions, if any, that are im- posed on public access to the property , and the property's relative size and openness."4 Factors . . . relevant to the consideration of a Section 7 right in any given case include, but are not limited to, the nature of the right, the identity of the employer to which the right is directly related (e.g., the employer with whom a union has a primary dispute), the relationship of the employer or other target to the proper- ty to which access is sought, the identity of the audience to which the communications concerning the Section 7 right are directed, and the manner in which the activity related to that right is carried out. Factors that may be relevant to the assessment of alternative means include, but are not limited to, the de- sirability of avoiding the enmeshment of neu- trals in labor disputes, the safety of attempting communications at alternative public sites, the 2 291 NLRB 11 (1988). 8 Id. at 14. 4 Id. at 13. 295 NLRB No. 8 CHUGACH ALASKA FISHERIES burden and expense of nontrespassory commu- nication alternatives, and most significantly, the extent to which exclusive use of the non- trespassory alternatives would dilute the effec- tiveness of the message.5 The facts in this case are not in dispute. The Re- spondents are fish canneries located at various points along an approximately 2-mile stretch of wa- terfront in the small town of Cordova, Alaska. They operate up to 10 months a year with their peak season between late June to mid-August. At the hearing the parties agreed that all the cannery workers employed in Cordova by the Respondents except for certain employees represented by other unions composed an appropriate unit. During the peak season in 1981 the multiemploy- er bargaining unit consisted of about 550 employ- ees. About 135 employees permanently resided in Cordova, a town of 2400 people. The remainder of the employees are transients from the "Lower 48" States, Vietnam, the Philippines, Peru, South Africa, and Israel. Many of the employees are col- lege students. The employees who do not reside in Cordova live in bunkhouses , campers, and tents on the respective company premises. During the peak season the employees typically work 16 or 17 hours a day, 7 days a week. There are two 1-hour meal breaks and several 15 minute coffeebreaks. The Respondents serve soup and crackers during the meal breaks, thus making it unnecessary for employees to leave the premises during meal breaks. Starting times are varied and time off is usually unscheduled . In many cases employees leave company premises only once or twice a week to go to town to shop, bank, or go to the post office, and in many instances they go by car. There are cubbyhole mailboxes in the canneries, but some employees receive their mail in town. There is a weekly newspaper and local radio service . Televi- sion is limited to a scanner service . It is very rainy in Cordova in the summer. Sixty-four inches of rain fell in August 1980 and continuous rain for days is not unusual . The employees who lived on the Respondents' premises were permitted to have social guests, but despite repeated requests by the Union for access to employees on the Respondents' premises during nonworking hours and in non- working areas for the period before the 1981 elec- tion, union organizers were not permitted on the premises. Concerning Respondent Chugach, only two em- ployees in the unit the Union sought to organize lived on the Employer's premises. The others ap- parently lived in town. Employees of Chugach, 5 Id. at 13 (fn. omitted). 45 other than those whom the Union sought to orga- nize, were represented by Local 37, ILWU, a Seat- tle-based local of the International union with which the Union in this case is affiliated. Both Union President Larry Cotter and Organizer Emily Van Bronkhorst testified that they were assisted in their organizing efforts by Pedro Anton, the Local 37 shop steward at Chugach. Van Bronkhorst testi- fied that she gave Anton leaflets to distribute. Chu- gach Assistant Plant Manager George Anderson testified that the Local 37 employees performed the same type of work as unit employees , that from time to time he observed Anton talking to unit em- ployees, and that Anton was not restricted from doing so in any way. A. Bunkhouses and Campsites Applying the analysis set forth in Jean Country to the facts here, we note that the impairment to the property rights asserted by the Respondents with respect to access to the bunkhouses and em- ployee campsites by nonemployees during employ- ees' nonworking hours in nonworking areas must be assessed in light of the reasonableness (or lack thereof) of alternative means of reaching the sea- sonal employees and the significant Section 7 orga- nizing rights involved . Not only is organizing ac- tivity a core Section 7 right, but we additionally note in assessing this right that the Respondents are owners of the property involved and there are thus no neutral entities that might have become en- meshed in the activity. The Union sought access to this property during employees' nonworking hours. The employees of the Respondents are the sole in- tended audience. In assessing the weight of the property right, we note there is no evidence that the bunkhouses and employee campsites are fenced or secured in any way nor is there any evidence that work was per- formed in employee living areas. Therefore, the Respondents have not established any production or safety concerns. Furthermore , social guests are permitted in these areas . Thus, access to outsiders is relatively unrestricted. Alternative means of communication with these employees are limited because of the long hours of work, the unpredictability of when time off will be scheduled, the shortness of the season , and the transient nature of the work force,6 and rainy con- ditions in Cordova. We find that the degree of im- pairment of the Section 7 right if access were denied outweighs the degree of impairment of the ° As noted above, when not working for the Respondents a significant percentage of the employees disperse to their homes in the "lower 48" States, Vietnam, the Phillipmes, Peru, South Africa, and Israel 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD private property right if access should be granted in view of the limited unavailability of reasonable effective alternative means of communication. We conclude that the Union is entitled to reasonable access to the employee living areas at Respondents Morpac, North Pacific, and St. Elias for the pur- pose of organizing employees residing on the prem- ises. We find that Respondents Morpac, North Pa- cific, and St . Elias violated Section 8(a)(1) of the Act by excluding union representatives from these areas. With respect to Respondent Chugach, however, we find that the Union had reasonable alternative means available to reach the employees. In our view, the General Counsel has failed to show that the regular presence on the Chugach premises of Local 37 Steward Anton did not constitute a rea- sonable alternative means of communicating the Union's message to the two unit employees residing on Chugach's property. Thus, we note that the union president and an organizer acknowledged that Anton assisted in the campaign and was given handbills to distribute to Chugach employees. There is no evidence that Anton was unable to communicate with the Chugach employees regard- ing the organizational campaign . Therefore, we shall dismiss the complaint concerning Respondent Chugach. B. Canneries The Union also requested access to the canneries themselves, albeit to the nonwork areas, for the purpose of organizing. Concerning the nonwork areas of the canneries, the evidence shows that all but Respondent Morpac have cafeteria areas housed within the canneries themselves but sepa- rate from the actual production areas. Respondent Morpac has two areas where soup is served, one of which will hold only 30 of its 200 employees and one of which is an area of its casing warehouse. There is no dispute that the Respondents are en- gaged in complicated processing operations necessi- tating maintenance of production and safety. Be- cause of this, public access to the canneries them- selves has been tightly restricted. Because we have decided to grant reasonable access to the Respond- ents' employee living areas to allow the Union to reach the employees residing on their property or in the case of Chugach, the Union already effec- tively has access to on-premises employees, we find that adequate alternative means of communication are available and the Section 7 organizing right will suffer little impairment if we deny access to the nonwork areas of the canneries. Concerning the employees who live in Cordova, there are effective alternative means of contacting them. The resident employees are available to the Union all year long, and during the nonpeak season they work only part-time . Their addresses are on the Excelsior list and telephone numbers would not be difficult to ascertain. Cordova is a very small town and the Union could visit employees at their homes. Thus, we find that the Respondents did not violate the Act by denying the Union access to the canneries themselves. NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 113-114 (1956). II. NO-SOLICITATION RULE The judge found that Morpac violated Section 8(a)(1) of the Act by maintaining an overly broad no-solicitation rule7 in that it prohibited solicitation during the employees' "working time" without fur- ther clarification. Since the judge rendered his de- cision, the Board decided in Our Way, Inc.," to re- verse its decision in T.R. W. Bearings9 relied on by the judge and find that rules prohibiting solicitation during "working time" are presumptively valid. Therefore, we shall dismiss this allegation of the complaint. AMENDED CONCLUSIONS OF LAW Substitute the following paragraph 3 for that of the judge. "3. Respondents Morpac, Inc., North Pacific Processors, and St. Elias Ocean Products, Inc. have interfered with, restrained, and coerced em- ployees in violation of Section 8(a)(1) by denying nonemployee organizers of the Union reasonable access to the employee living areas on their respec- tive properties for the purpose of communicating with the employees quartered thereon on the em- ployees' own time concerning organizational mat- ters." AMENDED REMEDY Having found that Respondents Morpac, Inc., North Pacific Processors, and St. Elias Ocean Products, Inc. have violated Section 8(a)(1) of the Act, we shall order them to cease and desist there- from and to take certain affirmative action that will effectuate the policies of the Act. We shall order Respondents Morpac, Inc., North Pacific Processors, and St. Elias Ocean Products, Inc. to permit nonemployee union organizers rea- sonable access to the employees that reside on their respective properties at their campsites or bunk- houses on the employees' own time for the purpose 7 The judge, apparently inadvertently, also included in his recommend- ed Order a finding that Respondent Morpac promulgated an unlawful no- distribution rule. However , there was no such allegation in the complaint. 8 268 NLRB 394 ( 1983). 9 257 NLRB 442 (1981) CHUGACH ALASKA FISHERIES of discussing organizational matters. The Union will not be afforded the right of unlimited access to the grounds of Respondents Morpac, Inc., North Pacific Processors, and St. Elias Ocean Products, Inc., nor access in such a way as to impede or interfere with their business operations. According- ly, the Order will not permit the Union to have access to their grounds for any purpose other than the limited purpose of going directly to and from the living quarters of the employees who are quar- tered on their grounds, in order to discuss and transact organizational matters with them. The Re- spondents will be permitted fairly and reasonably to regulate the number of such union representa- tives who may thus enter and visit at the same time, and to impose reasonable limits on visiting hours. See Raleigh Hotel, 191 NLRB 719 (1971), and S & H Grossinger's Inc., 156 NLRB 233 (1965), enfd. in relevant part 372 F.2d 26 (2d Cir. 1967). 47 tices, on forms provided by the Regional Director for Region 19, after being signed by each Respond- ent's authorized representative, shall be posted by each Respondent immediately upon receipt and maintained for 60 consecutive days thereafter, in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by each 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 Respondent has taken to comply. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ORDER The National Labor Relations Board orders that the Respondents, Morpac, Inc., North Pacific Processors, and St. Elias Ocean Products, Inc., Cordova, Alaska, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Denying nonemployee union organizers rea- sonable access to their respective Cordova, Alaska properties for the purpose of communicating with their employees who are quartered thereon at the employees' quarters or campsites about organiza- tional matters on the employees' own free time. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed in the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Permit nonemployee union representatives access to their property to visit their employees quartered thereon at reasonable times at the bunk- houses or campsites on the employees' own time for the purpose of discussing organizational mat- ters; provided, however, that such access may be fairly and reasonably regulated by the Respondents as indicated in the "Amended Remedy" portion of this Decision and Order. (b) Post at their places of business in Cordova, Alaska, copies of the respective attached notices marked "Appendices A-C." 1 ° Copies of the no- 10 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." 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT deny nonemployee union organiz- ers reasonable access to our Cordova, Alaska prop- erty for the purpose of communicating with those of you who are quartered thereon at your quarters or campsites about organizational matters on your own time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL permit nonemployee union representa- tives access to our property to visit those of you quartered thereon at reasonable times at your bunk- houses or campsites on your own time for the pur- pose of discussing lawful organizational matters; provided, however, that such access may be rea- sonably regulated by us. MORPAC, INC. 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX B 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT deny nonemployee union organiz- ers reasonable access to our Cordova, Alaska prop- erty for the purpose of communicating with those of you who are quartered thereon at your quarters or campsites about organizational matters on your own time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL permit nonemployee union representa- tives access to our property to visit those of you quartered thereon at reasonable times at your bunk- houses or campsites on your own time for the pur- pose of discussing lawful organizational matters; provided, however, that such access may be rea- sonably regulated by us. NORTH PACIFIC PROCESSORS APPENDIX C 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT deny nonemployee union organiz- ers reasonable access to our Cordova, Alaska prop- erty for the purpose of communicating with those of you who are quartered thereon at your quarters or campsites about organizational matters on your own time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL permit nonemployee union representa- tives access to our property to visit those of you quartered thereon at reasonable times at your bunk- houses or campsites on your own time for the pur- pose of discussing lawful organizational matters; provided, however, that such access may be rea- sonably regulated by us. ST. ELIAS OCEAN PRODUCTS, INC. R. Michael Smith, Esq., for the General Counsel. Joseph L. Davis, Esq. and Christopher C. Evans, Esq., of Seattle, Washington, for the Respondents. Larry Cotter, of Juneau, Alaska, for the Charging Party. DECISION HAROLD A . KENNEDY, Administrative Law Judge. The four Employer Respondents in these proceedings, Chugach Alaska Fisheries, Inc. (Chugach ), Morpac, Inc. (Morpac), North Pacific Processors (North Pacific), and St. Elias Ocean Products, Inc. (St. Elias), separately own and operate seafood processing and cannery facilities in Cordova, Alaska. The Charging Party, Alaska Council , International Longshoremen's & Warehousemen's Union (the Union) filed charges against each of the Respondents on Decem- ber 8, 1981. Each of the Respondents is charged with violating Section 8(a)(1) of the National Labor Relations Act (the Act) by denying union organizers access to its Cordova premises and maintaining unlawful "no-solicita- tion" rules. In addition, Respondent St. Elias is charged (par. 7) with interrogating applicants with respect to their union sympathies, and Respondent Morpac is charged (par. 8), "by its agent Miller," with telling, on or about July 12, 1981, "designated employee organizer Lisa Dennis that she could not discuss the Union amongst her co-workers at any time during working hours." In the present posture of the proceeding, after trial and submission of briefs, I need only to determine (a) the right of union access to the premises of the four Respondents, (b) the legality of a no-solicitation policy maintained and enforced by Morpac in 1981, and (c) whether Jack Miller, vice president of operations and un- CHUGACH ALASKA FISHERIES 49 disputed agent of Morpac , unlawfully restricted in-house organizer Dennis' organizing activity as alleged.' Paragraph 6 of the consolidated complaint, as issued on February 26, 1982, alleged: (a) On repeated occasions prior to the 1981 elec- tion, including occasions within the six months prior to the filing of the charges herein, and on a continu- ing basis during that time, the Union , by oral and written request made to Respondents ' agenda in- cluding, inter alia, Miller and Poor, sought access for its non-employees organizers to Respondents' and each of Respondent's premises for the purposes of meeting and speaking with unit employees about issues relating to the pending election. (b) The access requested , as above set forth in sub-paragraph (a), was uniformly denied by the named agenda of Respondents and non-employee union representatives were not permitted on the premises of any of the four facilities involved for the purpose of speaking with employees in the pre- election context. Paragraph 6 was amended by the Regional Director on April 7, 1982, by adding the following subparagraph: (c) The Union had no reasonable alternative means, other than the access requested, as set forth above in subparagraph 6(a), by which to effectively meet and speak with unit employees about issues re- lating to the pending election. Paragraph 9 of the consolidated complaint, as amend- ed by the Regional Director on June 24, 1982, alleges: (a) Subsequent to July 31, 1981, Respondents continued to post and maintain "No Solicitation" policies at their Cordova facilities , which policies, though they advised employees that they could not engage in solicitation for any purpose during "working time," did not further define that term. (b) Respondent Morpac had not continuously posted or actively enforced a "No Solicitation" policy prior to on or about July 13, 1981 . Morpac promulgated such a policy on or about July 13, 1981 in direct response to union organizing activi- ties then in progress , and discriminatorily applied that policy to union organizing activity. ' The Regional Director for Region 19, acting for the General Coun- sel, issued a consolidated complaint on February 26, 1982 The complaint was amended by the Regional Director (by adding subpar. (c) to par. 6) on March 7, 1982, and again (by revising par. 9) on June 24, 1982. The General Counsel's amendment of June 24, 1982, put in issue the posting of policy statements pertaining to solicitation by employees of all four Respondents dung "work time" after July 31, 1981 However , there was no evidence offered on this issue except as to Respondent Morpac and the effect of the amendment as to that Respondent was not substantial. Additional amendments were sought by the attorney for the General Counsel at the trial, which began in Cordova , Alaska, on July 13, 1982, and concluded there on July 16, 1982 The amendments proposed at the hearing were denied as they had not been timely offered, and it was ap- parent that the affected Respondent (North Pacific) was not prepared to plead or defend against the new charges (G.C. Exhs. l(ff) and l(gg); Tr. 9-40 ) On July 31, 1981, the date referred to in amended paragraph 9(a), the Board issued its decision in T.R. W. Bearings, 257 NLRB 443 ( 1981), modifying its earlier holding in Essex International, 211 NLRB 749 (1974)- that "rules which prohibit solicitation and distribution during 'working time' are presumptively valid , but that rules prohibiting solicitation and distribution during 'working hours' are presumptively invalid"-and an- nouncing a new holding: ... that rules prohibiting employees from engaging in solicitation during "work time" or "working time," without further clarification, are, like rules prohibiting such activity during "working hours," presumptively invalid. Paragraph 9, as it originally appeared in the General Counsel's consolidated complaint read: (a) On or about July 13, 1981, Respondent Morpac posted a "No Solicitation " policy at its Cordova facility, which policy, though it advised employees that they could not engage in solicitation for any purpose during working time , did not fur- ther define that term. (b) The policy posted as above set forth in sub- paragraph (a) had not previously been kept continu- ously posted or actively in force, and was promul- gated on July 13, 1981 in direct response to union organizing activities then in progress such that its enforcement was discriminatorily applied to union organizing activity. It is thus apparent that the Regional Director, by amending paragraph 9 shortly before the trial, sought to charge St. Elias, North Pacific, and Chugach, as well as Morpac, with violating Section 8(a)(1) by maintaining after the date of the T.R. W. decision no-solicitation poli- cies that did not adequately explain "working time" as required by such decision. As indicated above, only the legality of Morpac's "no-solicitation" policy need be de- cided on this record, however. The General Counsel's late amendment of paragraph 9(a) of the complaint put in issue posting policies of the three other Respondents, but no evidence was offered in support of the allegation as to them. a Paragraph 10 alleges that Respondents' acts, as alleged in paragraphs 6, 8, and 9 constituted unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) of the Act. Background and Undisputed Matters Jurisdiction is not in dispute . Chugach and St. Elias are Alaska corporations, and North Pacific and Morpac are Washington corporations . Each of the Respondents is admittedly an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charg- 8 Counsel for Respondents argued at the hearing that the Regional Di- rector's amendment of June 24, a little more than 2 weeks prior to the start of the trial, was barred by Sec 10 (b) of the Act and prejudicial as it sought to put in issue policies of Chugach , North Pacific, and St. Elias not theretofore questioned. 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing Party, Alaska Council , International Longshoremen's & Warehousemen's Union, is admittedly a labor organi- zation. The following individuals are admittedly statutory su- pervisors and agents of the corporate Respondents: Jack Miller, vice president of operations , Morpac; James Poor, plant superintendent, St. Elias; Mike Poor, plant manager, St. Elias ; and George (Bobby) Anderson, vice president, Chugach. The record also establishes that Ken Roemhildt is the manager of the North Pacific facility. In 1979 petitions were filed with the Board for an election in a multiemployer unit comprised of produc- tion, maintenance, loading, and unloading employees working in Cordova.3 Elections were held pursuant to such petitions in 1979, 1980, and on July 21, 1981, the most recent one (G.C. Exhs. 2-5). The parties agreed at the hearing that the 1979, 1980, and 1981 elections were set aside as stated by Respondents' counsel as follows: ... addressing paragraph 5, Respondents admit that there were elections held in 1979 and 1980 and those were set aside . I think, from the standpoint of the record, those two elections were set aside be- cause of Board agent conduct. And then addressing the 1981 election it was set aside based on objec- tionable conduct found to be used by the Respond- ents. The Alaska State District Council of Laborers, which had filed RC petitions, participated in the 1979 election but not thereafter. The parties agree on the composition of an appropriate bargaining unit : all of the cannery workers employed in Cordova by the four Respondent Employers except for certain employees represented by other unions, including nonresidents ("people from the Lower 48") working for Chugach who had been "his- torically" represented by ILWU 37 of Seattle, Washing- ton.4 The parties agreed to the introduction into evi- dence of a number of exhibits, including the following: Joint Exhibit 1-A map of "Greater Cordova" Joint Exhibit 2-An aerial photograph of Chu- gach cannery Joint Exhibit 3-An aerial photograph of St. Elias, North Pacific and Morpac canneries. A number of landmarks are indicated on Judge's Exhibit 1, including the four canneries in question ; Shelton Cove, also known as "Hippie Cove," and "Morpac Heights" where many of the cannery workers lived in tents; the Cordova Post Office; and the union hall. Cordova is a community of about 2400 persons and is located on an inlet 150 air miles southwest of Anchor- age. Cordova can be reached only by airplane or ferry. The population increases to around 5000 in the summer when salmon is harvested. s Bayside Cold Storage was named as an employer in an RM petition, and Chugach was not named as an employer in the RC petitions that were filed 4In 1979, members of the Prince William Sound and Copper River Cannery Workers Union merged with the ILWU. As indicated on Judge's Exhibit 1, St. Elias and North Pacific facilities are located on the waterfront within four or five blocks of downtown Cordova. Morpac's fa- cility is located on the waterfront approximately one- quarter of a mile in a northeasterly direction from down- town. The Chugach cannery is located on the waterfront in the same direction approximately 2-1/2 miles from downtown. Typically St. Elias and North Pacific operate 10 months or so of the year processing (freezing and can- ning) seafood, including salmon, crab, scallops, and her- ring. Morpac processed herring, crab , and salmon in 1981, but for only part of the year. Chugach processed some herring beginning in April 1981 , but its primary product that year was salmon which it began processing around May 17. Most salmon is caught and processed in the summer months. Production in the Cordova canner- ies is particularly high during a portion of this time period, referred to variously as the "peak season ," "sein- ing season" or as the "canning season." The peak season in 1981 was between June 25 and mid-August . During the offpeak months, when red salmon and other seafood are harvested, local residents are employed to do the processing. The bargaining unit in 1981 consisted of around 550 or more employees. About 135 resided in Cordova area, and the 400 plus remaining members were nonresident transients who traveled to Cordova from various places, including the "Lower 48," Vietnam , Philippine, Peru, South Africa, and Israel, to obtain employment.5 A number of transient workers do not speak English. Many of the transient workers are college students . Persons who have worked in prior years are usually given prefer- ence, but as a general proposition most workers are not hired until they appear at Respondents' facilities in Cor- dova shortly before the peak season begins. Many of Respondents' employees live on - company premises. St. Elias had two bunkhouses, marked "WIS" and "EB" on Judge's Exhibit 3 . In 1981, 94 lived in the bunkhouses, and an additional 20 to 25 lived in tents or trailers (or cars) on St. Elias' property . (Plant Manager Mike Poor said about 15 nonunit employees lived in the bunkhouses in 1981 .) In 1981 North Pacific had one bunkhouse (marked "BH" on J. Exh. 3) which provided housing for 54; 15 to 20 or so other North Pacific em- ployees lived in tents or trailers on that company's prop- erty. 6 Morpac had one bunkhouse (BH-3) which housed 40 employees in 1981; 6 other Morpac employees lived in vans on Morpac property. Employees living in bunkhouses are charged specified amounts that cover the cost of meals as well as lodging. Toilet and shower facilities are available to those living in the bunkhouses but little in the way of recreation or other facilities are furnished . Persons residing in the bunkhouses may have guests visit them but generally not 5 The parties are in basic agreement about the size of the unit. Re- spondents give the employment of each Respondent dung the peak season as follows-St. Elias, 200; North Pacific, 156; Morpac, 150; and Chugach, 55. 6 Another bunkhouse (BH-24), capable of housing about 24, was to be available for use in 1982 CHUGACH ALASKA FISHERIES union organizers . Letters or other printed matter mailed to the workers are placed in pigeonhole boxes at cannery facilities where they can be picked up. Employees of all four Respondents work long hours- as many as 16 hours or more a day, 7 days a week- during the peak season.' The workers generally start around 7 or 8 a.m., or earlier, and continue as late as 11 p.m., or later, depending on what jobs they performed. There are usually two 1-hour mealbreaks-at noontime (dinner) and evening (supper)-and three 15-minute cof- feebreaks-one in the morning, one in the afternoon and one after the evening "meal." Soup was provided by each of the Respondents (except Chugach which provid- ed meals) to its cannery workers at meal breaktimes without charge. Employees generally use much of their free time, in- cluding breaktime, to sleep or rest. Occasionally they go to town to the post office or run an errand." The Union first requested access in April 1981 by letter dated April 23, 1981 . The letter, addressed to John McCormac, attorney for all four Respondents and signed by Union President Larry Cotter, reads in part (G.C. Exh. 19): With this letter the ILWU Alaska Council requests the right of reasonable access to employees em- ployed by Chugach Alaska Fisheries , St. Elias Ocean Products, Morpac, Inc., and North Pacific Processors Inc., during non-working hours in non- working areas in the above mentioned facilities. This right of reasonable access will commence June 15 and extend until August 20, 1981. Access was never granted to the Union by any of the Respondents.9 On or about July 12, 1981, about the time that he learned from the Union that Morpac employee Lisa Dennis was a union "in-house" organizer, Jack Miller, Morpac's vice president of operations , posted a no-solici- tation rule which read (G.C. Exh. 21): NON-SOLICITATION It is the policy of MORPAC, Inc., not to allow any non-employee to come upon our premises for the purpose of any form of solicitation or distribu- tion of literature. This policy is to restrain any third parties or strangers from solicitating [sic] or hand- ing out materials for such things as political, union, charitable or other activities. Employees may not distribute any form of litera- ture or other materials in work areas at any time whether the employee is on or off work. Employees are also prohibited from "soliciting" for any cause T Apparently the workers are exempt from the Fair Labor Standards Act on the basis of the seasonal nature of the work. Chugach employees worked shorter hours because, according to its vice president, of the firm's better facilities. 8 There was evidence that employees had some short days or short time between June 25 and July 21 (election day), but the amount of time is disputed by the parties. 8 Cotter testified that he hand-delivered the letter to Attorney McCor- mac and that he made numerous other requests for access by telephone 51 during their assigned working time or soliciting other employees during their work time.'° On March 27, 1982, a revised rule was posted at the Morpac's Cordova facility reading as follows (R. Exh. 7): NON-SOLICITATION It is the policy of our company not to allow any nonemployee to come upon our premises for the purpose of any form of solicitation or distribution of literature. This policy is to restrain any third parties or strangers from soliciting or handing out materials for such things as political, union, charitable, or other activities. Employees are prohibited from distributing any form of literature or other materials in their work area. Employees are also prohibited from soliciting for any cause during their assigned working time or soliciting other employees during their assigned working time. Of course, this prohibition does not extend to your nonworking time such as your lunch period or coffee break. The Testimony Eighteen witnesses testified, seven for the General Counsel and eleven for the Respondents . A summary of their testimony follows in the order of their appearance. Herman Fleming testified that he worked for St. Elias between June 25 and August 15, 1981, and lived in a tent at "Morpac Heights." He assumed Morpac owned the land but had asked no one permission to stay there. Fleming thought that his tent was about one-quarter of a mile from the St. Elias facility and that he could walk the distance in 12 to 15 minutes . He estimated the number of people living on Morpac Heights in the summer of 1981, all in tents, to be around 20.11 Fleming said he worked on the "case -up crew and in the retort room" in 1981. He explained that a retort is a machine used to pressure cook salmon ; cans come out of the retorts, and the case-up crew works at the end of the can line where there is a "machine which stacks them up on the pallets for shipping." Fleming described other job categories at St . Elias as follows: ... There were people who worked up at the fish tanks where fish are stored when they come in and they are taken off of tenders. And there are slimers who worked on the slime line gutting fish, and that 10 Miller said the rule had been composed by Attorney McCormac and that it had been previously posted at the Morpac facility in Cordova Dennis who had worked for Morpac in 1980 said however, that she first saw it on July 12. 11 Fleming indicated that the number living at Morpac Heights fluctu- ated Some persons were unemployed , and he thought about 15 had left while he lived there Fleming thought that the majority of St Elias workers lived in a bunkhouse on St Elias property, but on cross-exami- nation he conceded that he did not really know how many worked at St. Elias. Fleming worked for St. Elias in the summer of 1980, when he lived in a motel , but he thought working conditions at St. Elias in 1980 and 1981 were much the same. 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sort of thing . And there are people who work on the can line, which is a mostly automated sort of thing which loads fish into cans and vacuum packs them. And then there is the retort room where just a couple of people oversee the cooking of fish in the retorts. And then there's case-up, which is the place where I worked, at the end of the line where the cans are stacked on pallets in preparation for shipping. And then there's also the egg room where people work on salmon roe. And there's a whole section devoted to just crab. Fleming stated that these jobs were "very mentally ex- hausting, and physically in the sense that you have to be on your feet for a lot of the time." During the peak season (which he thought ran from around July 4 to August 1, 1981) Fleming usually worked from 8 a.m. until 1 or 1:30 a.m. Slimers started earlier, around 7 a.m. he thought . He indicated that he and other workers gen- erally went to their tents and slept as soon as they got off work. ' St. Elias employees were furnished soup during the two mealbreak periods in the "soup room," where Flem- ing ate, and in the cafeteria, located above the cannery. Fleming said he would walk to town during a lunch hour once or twice a week to get his mail at the post office, buy groceries or do "things like that." Fleming said there was no in-house organizer for the Union at St. Elias. He said he went to one union meeting before the 1981 election and talked with Union Official Larry Cotter. Fleming said he was the only St. Elias em- ployee at the meeting and that he later "relayed a lot of information" to other employees. Fleming saw Cotter "every once in awhile," telephoned him on occasion, and acted as an observer for the Union at the election. 12 Fleming said he did not buy the weekly newspaper published in Cordova and did not have access to a radio or TV (although a TV was located in the cafeteria). He did not think it was practical to hold a union meeting at Morpac Heights. He recalled that it was cloudy and rainy in Cordova in the summer of 1981 . 13eginning in late July, after the election, he said it "poured for a couple of weeks." Fleming said he attended (arriving late) a company preelection meeting held one morning in the work area at the end of the can line. Startup of production was de- layed that morning, and Fleming thought all employees were required to attend. On cross-examination Fleming acknowledged that he could not recall seeing Cotter or other union representa- tive in the morning on the way to work , a time when it would have been daylight ; nor could he recall seeing Cotter or other union representatives in the evening after he got off work and went back to his tent. He also agreed that St. Elias placed no restriction on employees talking to each other during mealbreaks (starting at noon and at 6 p.m.) and coffeebreaks (starting around 9:30 12 Fleming said he saw no notices of union meetings at the cannery but knew other meetings were held. He recalled that there was an article concerning the arrest of an ILWU official posted in a breakroom at St. Elias. Flemipg indicated he did not volunteer to act as an in-house orga- nizer or to pass out union literature. a.m., 3 p.m. and 9 p.m.); also, that employees were not restricted where they could go while on break. Fleming also agreed that St. Elias employees had two successive days off in early July 1981.13 Edward Diemer, who identified himself as the meteor- ologist in charge of the forecast office in Anchorage, tes- tified concerning weather conditions in Alaska generally and in Cordova in particular . Diemer said: The normal weather in June, July, and August for Cordova or the North Gulf Coast is generally rainy. The number of days of rainfall are a lot higher than a lot of other places. The rain tends to be rather steady anywhere along the coast as it is opposed to shower. 14 Richard Randall, who said he was a State of Alaska employee concerned with fisheries and environmental conditions, testified that he had made daily recordings of rain in Cordova since moving there in March 1980. He had misplaced his records for 1981 but indicated that the annual rainfall for that year was around 240 inches. Ap- proximately 64 inches had fallen in August, he said. Ran- dall thought there was more rainfall in Cordova than at the nearby airport where a weather station was located. Randall stated that continuous rain for 2 days or so was not unusual in Cordova. Lisa Dennis, who resided and attended college in Cali- fornia during most of the year , worked for Morpac in Cordova between July 6 and August 13, 1981, as an egg (salmon roe) packer. She was an in-plant organizer for the Union at Morpac that year and served as an observer at the election . Dennis also worked at Morpac in the summer of 1980, but, while sympathetic to the Union, she was not involved in its activities. In 1981 she lived in a tent on Morpac Heights, a few minute's walk from the Morpac cannery . She thought there were about 20 tents pitched on that hill that summer. There were "hundreds" of unemployed persons in Cordova in the summer of 1981, she said, and some of them lived at Morpac Heights, along with other cannery workers . Dennis stated that some Morpac workers lived on Morpac prem- ises, either in a bunkhouse or in trailers. t s Like Fleming, Dennis considered the work in the can- nery to be mentally and physically exhausting . It was, she said, "cold, wet and you stood all the time; it was very boring and monotonous work." She said there was "constant and torrential " rain in July 1981. Dennis started work at 8 a.m., as most other Morpac workers did, and worked until 1 :30 a.m. 7 days a week 13 On direct Fleming testified that there are short days "early in the season" and that employees would be informed of it "a few hours before we were given time off." 14 The General Counsel offered certain climatological documents in evidence (G.C. Exhs. 36-39). Diemer pointed out that one document (G C Exh. 36) shows that the average monthly precipitation in Cordova for July to be 6.94 inches. 15 In 1980 Dennis lived in a tent in Hippie Cove, a 20-minute walk from the Morpac facility and about a 35- or 40-minute walk from down- town Cordova. Dennis remembered the conditions in Cordova in 1980 and 1981 as being about the same. Dennis estimated Morpac's employees at between 100 and 150, a third of whom being transient college students, a third Filipinos, and a third "local people " CHUGACH ALASKA FISHERIES 53 during the canning season. She thought she averaged 5 to 6 hours of sleep each day. She and other Morpac workers, including those who drove , arrived just before work was to begin . There was little opportunity for so- cializing. "Everybody usually just went home and went to bed" after work. She would use some of her free time to shower and do laundry (which could be done on Morpac property). About once a week Dennis would go to town ("a 15 minute walk" each way) during a lunch hour to get mail and possibly pick up groceries or eat a meal. There were 15-minute coffeebreaks at 10 a.m., 3 p.m., and 9 p.m. (plus an additional half hour for those working past midnight). Mealbreaks, when soup and crackers were served , were at noon and 5 p.m. Meal- breaks were usually for an hour, but sometimes they were limited to half an hour. t a Dennis said she could re- member an occasion or two when production stopped around 10 p.m. and only one short day before the elec- tion. She said little notice was given of the latter, and she attended a meeting of observers that day. Dennis said she saw Union President Larry Cotter, whom she knew "from 1980," a day or so after arriving in Cordova on June 30, 1981. She agreed to help Cotter with the Union's organizing campaign if she "ever got employed." Dennis said she attended two union meetings in 1981 before the election . One was an "informal" meet- ing attended by about 12 persons , and the other was a "formal" one. She said she posted a notice for the latter one at Morpac and 4 of the 10 who attended were from Morpac. (Dennis said she posted union literature in non- production areas of the facility.) Dennis said she received "mailings" from the Union that year . She picked up one in her "pigeon-hole" mailbox in the Morpac office, and the other mailing she picked up from a table in the breakroom. There were mailings addressed to other em- ployees, but she thought only 25 percent of the mailings were picked up. While working at Morpac Dennis would sometimes communicate with the Union by amending messages to its Cordova office through "friends who were still unem- ployed" at that time . Cotter or his assistant, Emily Van Bronkhorst, would thereafter contact her. Dennis said she saw Cotter in the vicinity of the Morpac facility two or so times, but saw Van Bronk- horst there many times. t' Dennis estimated that she saw Van Bronkhorst on 9 of the 15 days between July 6 and 21, the day of the election . She said she would watch for Van Bronkhorst at breaktime to see if the latter was there handing out union literature. Dennis stated that she, Van Bronkhorst, and Lorna Bennie, another in- house organizer at Morpac, would often meet during 16 Dennis indicated that Filipinos living in the Morpac bunkhouse sometimes ate soup with other workers even though they were entitled to meals, along with their lodging. Soup was served in a warehouse and in a kitchen. Coffee and doughnuts were supplied at lunchtime. Employ- ees were not restricted during breaks and were free to talk and move around, even leave the premises 17 Dennis said she saw Cotter distribute literature one morning She said she never saw Van Bronkhorst at Morpac Heights but indicated it was not practical for union representatives to meet with people there. She agreed on cross-examination that during the off months the Union had not been in contact with her. breaktime and sit together on a log situated near the road in front of the Morpac facility. Dennis said she met with Van Bronkhorst "several times" on July 18 in front of the Morpac facility. Early on that day, according to Dennis , Morpac Plant Manag- er Jack Miller came to her in the egghouse where she was working and told her that he had posted an article that would be of interest to her. She said she later saw posted, in three or four places, an article concerning the arrest of a union official named Baruso . Dennis reported the information to the Union , and Von. Bronkhorst told her the Union would get back to her "with more specif- ics." On one occasion that morning, according to Dennis, Miller came out in front of the Morpac facility where she and Bennie were meeting with Van Bronkhorst on the access road or driveway (near where it makes a "Y" with the main road that runs from Cordova to Chugach) and, pointing to a new "No Trespassing" sign,18 directed the three of them to "get across the road." Miller indi- cated, she said, that Morpac owned up to the middle of the access road. Later on that day Dennis met with Van Bronkhorst and Cotter in the same area, and Plant Man- ager Miller came up to join them . Dennis said she took delivery of some union "fliers" at that point and left to return to the Morpac facility . She said she observed Miller pointing to the sign and to the "boundaries of what he considered his property." Dennis also identified General Counsel 's Exhibit 40, a 9-page letter dated July 19, 1981, which she said was fur- nished her and Bennie, the other in-house organizer at Morpac, as a means of answering questions that Morpac employees had about the Union . Also, on July 19 a 15- minute company preelection meeting was held on Morpac premises . Dennis said employees were required to attend and Plant Manager Miller spoke to them. (She said a similar company meeting was also held in 1980.) Dennis also testified concerning an earlier conversa- tion she had with Morpac Plant Manager Miller, on July 12, after he had been informed that she was an in-house organizer. On that day, according to Dennis, Miller ap- proached her before work started and asked her what she was doing on behalf of the Union. She said she told him that she was talking to people about the Union and that he responded in part: [T]he Union was like a third party and got in the way between the workers and the Union [sic], and that if there was a Union they wouldn't be able to offer a 10% retroactive pay raise they had offered the last two years. He said that I was not-that it was company policy that I was not allowed to talk to anybody about the Union on the company prop- erty during working hours and that I could not dis- tribute any literature, Union literature, on the com- pany property. And I told him I thought the law 18 Dennis said she had previously seen a "private property" sign 10 feet or less "farther down the road," but not a "No Trespas§" sign 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was different than company policy and he said it wasn't. 19 Dennis said she told "everybody" at work what Miller had said and also called the union office to tell "Larry or Emily what Jack had said." Later, presumably the same day, she received word from Van Bronkhorst that she "was free to talk." She could not recall being advised by the Union about the distribution of literature, but she said she "still put it up" in "break areas and bath- rooms."20 On the following day, July 13, Dennis said she learned that a no-solicitation rule had been posted. Dennis said she saw it (G.C. Exh. 21) posted that day ("upstairs out- side the egg house") and that she had never seen it before. Dennis made a handwritten copy of the no-solici- tation rule for the Union.21 Emily Van Bronkhorst testified that she was sent to Cordova by Local 37 on or about July 7, 1981, to help ILWU's drive to organize the cannery workers.22 Van Bronkhorst left Cordova a couple days after the election. Van Bronkhorst said she "leafletted at Morpac, North Pacific and St. Elias" for 8 or 9 days, usually in the morning before production began. She said she was able to distribute only about 15 leaflets at each plant due, at least in part, to the fact that she was not allowed to go on the premises of the canneries.23 She indicated that the rainy weather and the (8 to 10) foreign languages that the workers spoke also presented problems to the Union 19 On cross-examination Dennis agreed that she had testified approxi- mately a year earlier in an R hearing that Miller had told her that she ..was not allowed to talk to any of the employees about the Union during his time in the work area." She indicated that she drew no distinction between the term "working time" and "working hours." 20 Dennis indicated she was secretive about posting of union literature and stated that "it would be taken down again " Other notices were also posted at that time , she said-newspaper clippings, photos, "cards with things for sale." 21 Miller acknowledged that he spoke to Dennis before the shift began on or about July 12 He said around that time he received a letter from the Union advising him that Dennis was an in-house organizer. He said he "immediately checked to see if our no solicitation policy was still posted " Finding it was not, he "had new copies prepared and placed throughout the plant." With Dennis being an in-plant organizer he said he knew she would be disseminating literature and discussing the Union so he "told her to restrict her Union activities to her time and not to interfere with the workers during the routing course of their duties." Franco Descargar, a Morpac defense witness who had worked for Morpac in 1979, 1980, and 1981 , said he did not recall seeing the no-solic- itation rule (G.C Exh 21) prior to his testifying. 22 Van Bronkhorst said Local 37 also sent Glenn Suson for 2 weeks in July 1981 to help Cotter organize the cannery workers in Cordova. She identified Local 37 as a member of the Alaska District Council and indi- cated it is referred to as a "cannery workers Local " She said its mem- bers reside in California, Oregon, and various parts of the Northwest and are dispatched through a hinng hall to various points in Alaska during the salmon and crab canning seasons. 23 Van Bronkhorst acknowledged that workers could leave cannery premises during their break periods but indicated that when they did they went by her in an automobile (Van Bronkhorst thought Morpac was a 20-25 minute walk from downtown.) She agreed on cross-examination that there was little or no effort to leaflet during evening breaks or after employees stopped working. Van Bronkhorst said she went to Hippie Cove once and Morpac Heights maybe twice. She said she did not leaflet Chugach but had taken literature there for the union steward to distnb- ute. Van Bronkhorst said she posted leaflets around Cordova. in distributing its literature and communicating with them.24 Van Bronkhorst referred to meetings that she had with Morpac in-house organizer Dennis on the access road near the Y in front of Morpac (marked "L" on ALJ Exh. 3) on July 19, 1981. Van Bronkhorst generally cor- roborated Dennis' prior testimony concerning Morpac official Miller's discussion with them that morning-i.e., that he arrived on the scene and asked them to move across the middle of the road "past the sign" where he said the property line was located. Van Bronkhorst said she thought the access road was public, but Miller "made a specific point of saying that Morpac had pur- chased this access road here up to this point [the middle of the road] specifically to keep the Union people off." Van Bronkhorst said she had leafleted three or four times on the access road prior to that date without inter- ference and had not seen the (no trespassing) sign re- ferred to. She said she did recall seeing a "private prop- erty" sign "farther into the Morpac compound" (marked "E" on ALJ Exh. 3). Van Bronkhorst also corroborated Dennis' testimony that Dennis submitted a list of ques- tions that day and that Van Bronkhorst and Cotter re- turned with answers to the questions later that evening. Miller appeared again at the evening meeting, and Cotter and Miller had "a small argument over the ownership rights." Van Bronkhorst recalled that Cotter and Miller also discussed the Baruso matter at that time and that Miller agreed "in the interest of fairness" to post an arti- cle announcing that Baruso had been released from jail.25 Thomas Alan Tift Jr., of Berkeley, California, said he worked in the North Pacific cannery in Cordova, mostly in the "egg room" from "maybe June 25th or so .. . until October" 1981. He lived in a tent at Hippie Cove "until the Cordova flood," which occurred after the election and at which time he moved into town. Tift esti- mated Hippie Cove was "somewhat over a mile" from North Pacific, a distance he usually ran in 10 or 15 min- utes.26 Tift said that from the time he was hired by North Pa- cific in June 1981 until election day he worked 7 days a week from 7 a.m. to around 1 a.m., except for two or so occasions when employees were let off on short notice at around 10 p.m. There were two mealbreaks each day, lasting usually an hour each, and coffeebreaks every 2- 1/2 hours. The hours worked by most ("the bulk") of the North Pacific employees were about the same, al- "' Van Bronkhorst, who helped prepare some of the union literature, said the Union prepared leaflets in Spanish, Hebrew, Vietnamese, and two Philippine dialects. She indicated that having an employee 's name or address would not tell one what language he or she spoke. 25 Van Bronkhorst also said a "white male about 45" told her on July 17, when she was leafleting at North Pacific, that she should "move out to the middle of the road." 26 Tift also worked for North Pacific in 1980 and lived the "entire season" at Hippie Cove. He thought around 200 lived at the Cove in the early summer of 1981 , some of whom were employed at the Cordova canneries while "quite a few" were unemployed. He indicated that other North Pacific employees lived in "another squatter place called Morpac Heights," some in town, and "a significant number of people," including many from Vietnam, on company premises (in a bunkhouse, "in trailers and houses"). CHUGACH ALASKA FISHERIES 55 though there was a clean-up crew that started around midnight. He considered his work to be "boring and ex- hausting." Soup and crackers were provided at the noon hour and again in the evening . There were two places to eat at the North Pacific facility; full meals were provided at one of the places for persons residing in the compa- ny's bunkhouse as part of a "package deal." Coffee and cookies were served at coffeebreaks. Tift said he was the in-plant organizer for the Union and served as its observer at the 1981 election, although he never joined the Union. Tift said he attended one or two union meetings . He encouraged other employees to attend, but few did so as they either had errands to run or wanted to go to bed and sleep. Tift said he was free to leave the premises on meal- breaks. He said he used his lunch hour to go to town for mail or eat a meal on occasion, but usually he used the time to eat and catch up on his sleep . He said he slept about 4 hours a day. Tift said he knew little about the Union and therefore submitted questions about it to Union President Cotter. Tift posted copies of answers he received, along with the questions (G.C. Exh. 32), on or about June 16 and handed out a "few" copies to individuals. Tift said no one told him he could not post or distribute literature to employees at North Pacific. Nor did anyone restrict him from talking to fellow employees about the Union. North Pacific also posted literature before the election, Tift said. He recalled that the Company posted results of election which the Union lost and an article concerning "the murder of a couple of officials down in Seattle." Tift said he found it "pretty frustrating" to maintain contact with Cotter and Bronkhorst. He had little time and energy to see them . He recalled the Union held a picnic but that he and other North Pacific employees worked that day. He described Hippie Cove as "a place in the bush with a bunch of tents" and not a suitable place for a meeting. It generally rained, he said, and there were "no facilities." According to Tift, North Pacific held two preelection meetings in 1981 . He said the meetings were mandatory and that "virtually everyone" was there. Ken Roemhilt, whom he regarded as the superintendent of North Pacif- ic, spoke at both meetings, making "basically the same pitch," saying, among other things, "how proud he was of us," "sorry" for the interference of the "Union trou- ble" and that "he wished he could have the chance to show what he could do for us if his hands were free."27 Lawrence Cotter has been president of the Alaska Council of the ILWU since July 1978. He works with 30 or more bargaining units concerned with seafood proc- essing. He represents longshoremen throughout the State of Alaska, except for the Ports of Anchorage and Skag- way, and employees working on tugboats , towboats, and tankerboats. Cotter began visiting Cordova in November 1978 when there was a small membership in the Prince Wil- liam Sound and Copper River Cannery Workers Union. In 1979 that Union merged with the ILWU.28 Cotter said the cannery work force in Cordova was about the same in 1980 and 1981 which , in each case, he described as including 130 to 135 resident cannery workers with the remainder falling into two groups: first, transients and college students, and the "other would be a group of various ethnic nationalities"-Filipinos, Vietnamese, Is- raelis, and "some Spanish-speaking people"from Peru and "perhaps some Mexicans as well." Cotter visited Cordova briefly in April 1981 but began his 1981 organizing drive after his arrival there around June 27. Except for 6 or 7 days, when he was in Bristol Bay and Juneau on other union business , he remained in Cordova until after the election. Cotter said he asked Local 37 for help at the beginning of the 1981 drive, a time of "some turmoil," he said, because two union offi- cials had been "shot and killed" in early June 1981. Cotter was provided the assistance of Emily Van Bronk- horst, Glenn Suson, who apoke a Filipino dialect, and a "cadre" of four or five others who helped out periodical- ly. 29 Cotter said his union did not ask for access during 1979 or 1980 but did so "at least nine times" prior to the 1981 election. His first request was in writing which he said he hand-delivered to Respondents' attorney, John McCormac, in the latter's office in Seattle. Cotter testi- fied, as the letter dated April 23, 1981, states (G.C. Exh. 19) that he "asked for the right of access to visit with employees in nonwork areas during nonworking hours, between, I believe, the time period June 15th through August 20th." Other requests were made of McCormac by telephone, Cotter said.S° There were "several reasons" for requesting access in 1981, Cotter said, but, "in essence," there was the need to communicate with the workers in person . Leafleting, which he had relied on in 1980, was not effective. Many employees lived on company premises and left them only rarely. Those leaving the premises often did so by car, and it was "difficult" to get such persons to accept litera- ture. Rain also presented problems, he said. So did the 87 The General Counsel 's attorney questioned Tift, in form of an offer of proof, concerning a conversation he said he had with Ken Roemhilt after the election. Tift said he went to the superintendent about reports of being in "hot water" and a union spy. The superintendent "took the op- portunity to lecture me on the issue of unions ," Tift said. The General Counsel also questioned Tift concerning preelection conversations he said he had with Al Fulton, "one of the bosses at North Pacific" and Don Roemhdt, "the person next below Al Fulton ." These conversations are also in the record as an offer of proof. While the General Counsel argued such proffered testimony was relevant to the issue of access as well as the amendments offered at the hearing , I hold otherwise. The testimony con- cerning Roemhilt and Fulton are, therefore, disregarded as being outside of the properly alleged charges 28 In 1979 the International Laborers Union also sought representation of cannery workers in Cordova. That year the workers could vote for either union or against both (G.C. Exh. 6) 29 Cotter said he spoke "some Spanish and a little bit of German." Cotter testified on cross-examination that he did not ask any local resi- dents to take an active organizing role in 1981. They had become frus- trated and lost some of their enthusiasm by that time, he said . Cotter be- lieved that the local folk would support the Union as they had been members of the "old union." 30 On cross-examination, Cotter said he had three conversations with McCormac between May 10 and July 20 . Cotter said he never got a "direct answer," but "his answer" made it clear access would not be given. 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD foreign language that some workers spoke. Free soup and crackers induced workers to stay on the premises during breaktimes, as did the long hours of work which made them tired . Other organizing efforts were also un- successful-two union meetings , both poorly attended; a picnic; a "hot dog" special; and an advertisement in the local weekly newspaper, along with a letter addressed to its editor. Use of the local radio was considered but re- jected as it broadcast only during the daytime . He said the Union may have put an ad in the local TV scan sta- tion. Cotter said that the Union had no in-house organizers at either St. Elias or Chugach in 1981 . The in-plant orga- nizers at the other two canneries were not effective, ac- cording to Cotter. The organizers worked in isolated work areas; "at break times everybody appeared always to be tired and exhausted and had other things to do." The organizers were also unfamiliar with ILWU con- tracts and had little knowledge of labor relations. One "tack" the Union took, Cotter said, was to encourage workers to ask questions, and he promised to immediate- ly respond.3 t Cotter indicated that the Union's 1981 organizing drive was handicapped by lack of time and manpower available to contact cannery workers . He said there were approximately 590 persons on the Excelsior list and the Union had but 10 days or so to reach them before the election. There were but a few ("something like 13 or 21") employed at Chugach, Cotter said, but "basically" the unit was "scattered" among the other three canner- ies, St. Elias, North Pacific, and Morpac.32 Cotter said there were four mailings of letters to workers, explaining that "it was no easy thing to sit down and hand-address 590 envelopes, or to go around and lick stamps to put on them." Cotter said no effort was made to telephone or visit local resident workers. According to Cotter, the Excelsior list carried no telephone numbers, and many of the workers only had a post office box address.33 Cotter said the Union was "absolutely unsuccessful in reaching people at St . Elias." He testified that he tele- phoned Respondents' attorney, John McCormac, after receiving a report that Lisa Dennis, the in-house organiz- er at Morpac, had been told she could neither talk about the Union during working hours nor distribute literature on Morpac property. "And John's response to me was," Cotter said, "in relation to talking on the job about the Union he was nervous that there would be an injury," and with respect to "distribution of literature we never reached a mutually agreeable decision." Cotter said he then gave instructions that- ... she could talk about whatever she wanted to talk about whenever, regardless of the time, when she was at the cannery . And that she should make 31 G.C. Exhs. 32, 33, and 40 are letters sent by Cotter in response to questions asked of in-plant organizers in July 1981. 32 On cross-examination, Cotter stated that "we never really concerned ourselves with Chugach, with nine people in the bargaining unit." as Cotter stated that the Union made no mailings between the 1980 and 1981 seasons because of the "highly transient" nature of the cannery workers. On cross-examination Cotter indicated there was no organizing effort between seasons. sure though that she doesn't disrupt the operations. And I said in terms of literature, go ahead and dis- tribute literature but do it surreptitiously. Cotter said he also had used "a young man from Idaho," Ron Robinette, "to run a midnight rendezvous, so to speak, and to take leaflets and go onto the company property . . . [but that he should] be very careful that he didn't get caught." Cotter claimed that during the 1981 organizing drive he was denied opportunity to make contact with workers by local canning officials in Cordova. In early July, ac- cording to Cotter , he was leafleting on the parking lot in front of the North Pacific facility and was approached by Plant Manager Ken Roemhildt, who told him: [T]he parking lot is company policy and you know the rules. He said, there's the road out there, he said, please go and stand out in the road and do your leafletting out there. Cotter said he then moved off the parking lot and onto the road. In July Cotter went to Chugach accompanied by Van Bronkhorst and Suson . The Chugach official in overall charge, Forsell, told Cotter he was "mad " at him be- cause of the legal costs involved in "this whole election procedure," stating he had been "happy dealing with Local 37." Forsell refused to shake Cotter's hand but al- lowed Van Bronkhorst and Suson to go into the plant. Cotter assured Forsell he would not be electioneering and was then also allowed into the facility. On July 17 Cotter called St. Elias President Jim Poor and asked "reasonable access to visit with the employees in non-work areas during non-work-hours." He was re- ferred to Evans, and again Cotter made the same request. Cotter said he was told by Evans that it was St. Elias' policy to "not allow non-employee solicitors on compa- ny property." Cotter testified concerning three conversations he said he had with Morpac Vice President Jack Miller in the summer of 1981 . One occurred in late June or early July, he said, when Cotter was on the access road in front of Morpac facility. Miller came out, according to Cotter and, disputing Cotter's claim that it was a "public access," said that "Morpac had bought the road." The second conversation took place on or about July 18. On that occasion, Cotter said he called Miller and expressed concern over posting of articles that told of the arrest of union official Tony Baruso. Cotter said he asked Miller for the right of reasonable access to visit with employ- ees in non-work areas during non -work hours for the purpose of communication with them." Miller's response was, according to Cotter, that he would never set foot on Morpac property. The third conversation Cotter had with Miller took place on the following day, July 19, around 8 p.m. Van Bronkhorst was there and Dennis too for a brief time. Cotter said: CHUGACH ALASKA FISHERIES 57 We were in the L area, or in the Y area down here just behind the sign that's designated as L.34 And Mr. Miller came out and said that was private prop- erty. And at that point I instructed Lisa Dennis to go back to work. I engaged in a conversation with Mr. Miller and he said that this was all private property. . . . And he made the comment that the company owns the property out to the middle of the highway that runs in front of Morpac, which we've referred to as the main road . He said that I should remove myself to the other side of the middle of the main road. And we started to walk in that direction as he was pointing these things out. I reached a point where I thought there would be an easement in conjunction with the highway; I believe the easement is six feet in, or something like that, to the best of my knowledge, and I stopped there and said, Jack, I don't believe that you own the middle of the road, I just don't believe that your company owns part of the highway. And I said, I believe this is an easement in this far and I said I'm not going to move any farther, if you want to call the police then go ahead and call the police and we'll see what happens at that point. And then I went on to say, look, you know, I don't want any trouble with you, and we continued to have a conversation at that point. We went on to discuss the fact that the Baruso articles were up on the bulletin board. Cotter said he specifically requested access that day so he could communicate with employees about the "Baruso incident" and "other items relating to organiza- tion." Cotter recalled also that he and Miller "discussed fair play and things like that and I made the statement, I am going to send you this article tomorrow and I expect you to post it." Cotter said he later sent to Miller a copy of a newspaper article which explained that Baruso had been released without any charges.35 "Jim" (James Alan) Poor is the president and superin- tendent of St. Elias, which is owned by Ocean Beauty Seafoods. He deals primarily with fishermen, and his son, Mike Poor, is the plant manager of St. Elias. Jim Poor has lived in Cordova for 24 years and is currently serv- ing his sixth term as the city's mayor. Fishing is the major industry of the area, and the city, which has around 2300 or 2400 permanent residents, increases to about 5000 in the summer . During the peak or canning season Jim Poor is at the St . Elias facility from around 5 or 5:30 a.m. until 9 p.m., 7 days a week. He explained that the harvest is "a very perishable product and we're working generally 7 days a week approximately 16 hours a day just canning."36 34 Cotter said he recalled seeing a "no trespass" sign at the "L" posi- tion for the first time on July 19. 35 See G.C. Exh. 34. Cotter also sent a similar article to St Elias At- torney Chris Evans for posting at the St. Elias facility Cotter said he sent the articles to both canneries by taxi "because we couldn't go on the property to deliver them ourselves." as Superintendent Poor explained that the fish quickly decompose, and sometimes during the peak season St. Elias could not always get it canned on the day of delivery. St. Elias operates about 10 months each year. The company cans and freezes salmon and also ships it fresh. St. Elias also processes crab (Tanner, Snow, and Dunge- ness), herring, and scallops. There are different types of salmon-king, sockeye or red, and pinks or humpies, the latter being the "high volume fish ." Local residents typi- cally process crab, scallops, and sockeye, all of which are processed just prior to the start of the peak season.37 Jim Poor testified that St. Elias arranged for lodging of some company employees during the 1981 peak seasonSB in a downtown hotel, some in a restaurant and others in an apartment building . Some employees were quartered in the Company's two bunkhouses.39 Others stayed in the tents or in campers on company property that had been fenced off (marked "D" on ALJ Exh. 3). Still other St. Elias employees stayed at Morpac Heights and Hippie Cove. Jim Poor estimated the former to be about one-fourth of a mile from the Company's facility and the latter to be between two-thirds and three-fourths of a mile. A few St. Elias workers slept in automobiles parked in the public parking lot located just south of the Company's cannery, although a sign at the site forbade such activity. The St. Elias superintendent estimated the number of employees during the 1981 peak season at 200. A few St. Elias workers came to work by car, accord- ing to Jim Poor, but most walked . Superintendent Poor explained that there were two entrances to the cannery, one on the south near his office (marked with a "P" on ALJ Exh. 3) and used, he thought, by most employees in leaving the plant, and another on the north. In 1981 workers who stayed in the company bunk- houses ate in a messhall and paid for their meals, along with the cost of lodging . For nonbunkhouse employees, homemade soup was furnished ("as many bowls as they want"), along with crackers and beverages, at lunchtime and again at "supper" time (5:30-6 p.m.) in the upstairs souproom. Beverages-coffee, tea, Kool-Aid-were served before work started and during regular break- times. (Mealtimes are not paid by St. Elias; breaktimes are.) Employees sometimes also brought additional food to eat at the plant. Sandwiches could be bought at night by members of the cleanup crew. Superintendent Poor said he had permitted employees to use his company phone for an emergency . Employees could use company phones to call Cotter or other local members. There were also two pay phones (marked 97 Jim Poor explained that "residency is a very touchy subject in Alaska"-"I figure," he said, "there's five different residencies"-and es- timated that around 40 or more local people were employed at St. Elias during the 1981 seining or peak season. 38 The St Elias official stated that the 1981 "seine season ... was a record year," better than 1979 when "we canned 27 days." He said the seining season usually lasted for about 6 weeks each year. 98 There are 50-52 beds in the St. Elias' east bunkhouse (marked "EB" on ALJ Exh 3) located on the second floor over a storage area. There are different rooms, each accommodating four or five people. There are showers and toilets but no other facilities The west bunkhouse is over the cannery and has about 50 beds located in different rooms. There are showers and toilets in the west bunkhouse for both sexes ; also a kitchen- messhall, which seats around 65 people ; a laundromat; recreation room, and a TV room which can be used by all St. Elias employees Jim Poor said guests visited workers living in the bunkhouses, even though there were no trespass and no soliciting signs in the area. 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "PB") nearby which workers could use. Employees could mail letters at the plant , and mail addressed to em- ployees in care of St. Elias was placed in alphabetized pi- geonhole boxes. Downtown Cordova is approximately four blocks from the St. Elias facility, and the superin- tendent thought employees would leave the facility about twice a week during mealbreaks to go to the post office or perform some other personal business. Employ- ees otherwise used their breaktime to relax or take a "snooze." Jim Poor stated that one preelection company meeting was held with employees in 1981 . It lasted approximately 25 to 30 minutes and took place at 7 a.m. on July 20 before production started up . He thought such meeting, at which he spoke, was "ample to explain our views."40 He said he also posted in the plant a newspaper article pertaining to Tony Baruso (and another one on the same subject later at Cotter's request). Superintendent Poor in- dicated that such was the extent of the Company's cam- paign in 1981. He said he did not grant access to the Union because St. Elias employees "work very hard," were generally tired, and he did not believe they should be bothered on their own time. The St. Elias superintendent identified a number of places in the Cordova area that he thought were suitable for the Union to use in talking to workers-the library, the city parking lot, high school, Coast Guard dock, and the union hall. Jim Poor expressed the view that Cotter's 1981 orga- nizing campaign was less vigorous than the one he con- ducted in 1980. "He sent a lot of letters in 1981, our mail box was jammed," but there was less leafleting. The su- perintendent indicated TV, radio, and the weekly news- paper ("about 99% . . . local news and ads") were avail- able to the Union. He said the Union could have commu- nicated with St. Elias workers by placing two persons at the St. Elias cannery, one at the south entrance and the other at the pathway between the east bunkhouse and the north entrance (marked with green "X's"). The weather was "not too bad" before the election-"a typi- cal summer, .. . some overcoat, some light rains, some sunny days ...." The St. Elias superintendent supported Morpac's claim that the access road in front of Morpac belonged to it. He thought it had been previously owned by private concerns and never owned by the city of Cordova. Jim Poor said his company had a "joint tender" operation with Morpac, by which fish were brought to their plants, but he stated that Morpac, as well as Chugach and North Pacific, were `competitors."41 "Mike" (Michael James) Poor said he had been plant manager at St. Elias for 4 years. He overseas "processing and production from start to finish." and the hiring and firing of employees. He identified the various classifica- 40 Jim Poor said he did not want to harass the Company's employees and was not sure if the Company's position was clear to them or not. He indicated that if having a company meeting would operate to entitle the Union to have the same opportunity he would not want one . The Gener- al Counsel's attorney conceded that nothing said at the meeting was being challenged. 41 Other Respondents' officials also testified that Respondents are "competitors." tions of the 200 or so employees working at St. Elias during the peak season-e.g., dock crew, case-up crew, egg crew, crab crew, fresh market crew, and clean-up crew-and their hours of work. He stated that the com- pany seeks to have a stabilized work force , and many of its employees have worked for St . Elias during a previ- ous season . The St. Elias plant manager said the Compa- ny gets commitments "out of college students, although they may choose later not to come and work . He indi- cated that several ethnic groups were represented among the company's employees but that it was possible to communicate in English with most of them. "They seem to fill out our applications," he said. Mike Poor stated that the bunkhouses on St. Elias property holds about 108 people but that only about 94 members of the bargaining unit resided there in the summer of 1981. He thought "probably 25" lived on the Company's property within the fenced "tent area." The St. Elias plant manager did not indicate the number of employees that lived in Hippie Cove and Morpac Heights, but he thought "90% of those people probably walked" to work. He estimated that 60 percent of the local resident St. Elias workers drove to work. Between May 15 and June 25, according to Mike Poor, around 60 employees, mostly local folk, would work 24 to 40 hours a week for St. Elias. They stay on and work through the canning or peak season "when they really make their money." During the peak season two production lines are in operation (although three are in place). In a "normal year," he said, the cannery is closed down for half a day on Sunday or Monday. While 1981 was a banner year (as was 1980), he indicated there were some short days . His "can records" (which must be certified to the Food and Drug Administration ) indicate, he said, that the can lines were down early as follows in 1981: June 26-10:30 p.m.; June 30-2:30 p.m.; July 2- 9:15 p.m. and July 13-3:30 p.m. Plant Manager Poor said the company's electioneering in 1981 was limited to a 25th-hour speech and the post- ing of a newspaper article. "We really didn't have time for anything else," he said. He indicated that employees were accessible to the Union . The Excelsior list, he thought, had "everybody's address" on it . Employees made telephone calls and were "uptown and downtown running around" during hour breaks before the election. He said he did not care where employees "go on their free time. 1142 "Ken" (Kenneth) Roemhildt has been a resident of Cor- dova since 1965 and superintendent of the North Pacific facility there (marked "NPP" on ALJ Exh. 3) since 1970. He testified that he "participates in most of the hiring" of the firm's employees. Roemhildt stated that "we handle canned and frozen salmon, crab, halibut, herring, almost anything that's available to us here." He said his company, like St . Elias, operates basically on a year-round basis, although North Pacific was "the only cannery to run crab during the winter of 1981." Consequently, he said, "we ended up 42 On cross-examination Mike Poor indicated visitors in the bunkhouse were tolerated but stated "we discourage people from visiting our em- ployees during the high peak season " CHUGACH ALASKA FISHERIES 59 with a considerable greater local crew than would have been normally available to us." Roemhildt explained that the crab season "starts slow" in January , peaks around March 1, and then tapers off. Herring is next, and then the "red" or sockeye season follows. In 1981, 80 to 90 "local people" were employed at North Pacific during the red season, which lasted from around mid-May until June 25.4$ During the 1981 peak season the work force expanded to around 155.44 Roemhildt indicated there is relatively little turnover at North Pacific. North Pacific quartered about 54 transients in one bunkhouse ("BH-1") in 1981. Another, 'BH-2," was under construction in 1981 . About 20 or so other tran- sients found housing on their own "some place uptown or at the cove or Morpac Heights or wherever." "Right about half" of the approximately 75 transients that year had worked for the Company during a prior season. During the red season North Pacific canned about 3 days a week. When the peak season started the schedule changed basically to: 7:00 o'clock start; 9:30 coffee break; 12:00 noon lunch; 1:00 o'clock start; 3:30 break; 6:00 o'clock supper; 7:00 o'clock start; 9:30 break; midnight quit. The dock crew, whose hours depended on the arrival of fish, and certain other individuals working in the egg house and case-up did not follow such schedule, howev- er. Coffee and cookies were provided by the Company during the 15-minute breaks, and soup and crackers were served during lunch and supper breaks. "A few of the people would try to make their whole meals out of 18 bowls of soup," he said, but workers often bring along something else to eat. Bunkhouse employees eat in the dining area in the bunkhouse. They pay "a fee" for a place to stay; "that also includes meals." The bunkhouse has a kitchen, a toilet-utility area, a laundry room, and a pay telephone.45 Mail can be sent out and received ("there is a box on our counter where they come and check") by employees at the North Pacific facility . Roemhildt, who usually went home for all of his meals, said he observed that "there was always some people leaving . . . to get a hamburger . . . for mail or personal articles uptown." Roemhildt said he would see 25 or 30 workers leave the company's premises, over half walking, during meal- breaks. Roemhildt indicated that North Pacific did little cam- paigning before the 1981 election : "We handed out two letters explaining our position" and "had one meeting with the employees" in the bunkhouse dining that lasted about 15 minutes . Roemhildt said the Company did not 49 About 15 or 20 local people live in trailers on property leased by North Pacific (marked "T with a circle") *4 Roemhildt said North Pacific's Excelsior list had about 160 names on it "because we didn't want to take a chance of missing somebody." as Roemhildt stated on cross-examination that bunkhouse workers could enter the cannery without going onto public property . He indicat- ed that such employees could have a friend visit but that social visitors were not allowed "on a general basis, particularly during the seine season, you know, as it relates to around election time " do anymore because it did not consider the Union to be "a major threat," and "we really didn't have enough time to have more meetings or do other things." The Union, according to Roemhildt , "didn't mount much of a campaign in 1981 ." He continued: ... The previous year there wa a much greater effort. Many, many meal break periods there were people both at our plant and St. Elias handing out leaflets and talking to people. During the 1980 campaign , according to Roemhildt, the Union had positioned persons on the "two routes into the plant." Roemhildt stated that 1979, 1980, and 1981 were bumper years and that 15-hour days were of relatively recent origin. He thought nearly all of the Company's workers were off on July 3 and a substantial number off on July 4. He indicated there could have been "an after- noon or two or an evening or so off" also. Mason Wiley, who attends college in Connecticut, tes- tified that he worked for St. Elias in 1981. He stayed the first 2 weeks in a company bunkhouse and then moved into a tent he pitched on company property behind the east bunkhouse. Wiley said he was "switched around" in the Compa- ny's cannery. He worked for a time on the slime line, which closed down earlier than some parts of the can- nery. He said he worked from 7 a.m. to 9 p.m. ("some- times later, sometimes . . . earlier"). "We took an hour lunch break and an hour dinner break and 15 minute coffee breaks every two hours." Wiley said he ate his meals mostly in his tent, sometimes in town, and some- times in the St. Elias soup kitchen. Wiley testified that he went to town 15-20 times a month. The rain, he said, did not deter him from going outside. Wiley stated that he saw Union Official Cotter "a couple of times" in town and discussed the Union. Wiley said he got union literature from Cotter and saw him a couple of other times in town. Zane Hathaway, of St. Anthony, Idaho, worked for St. Elias in Cordova in 1979, 1980, 1981, and 1982. He has performed different jobs at the cannery, including work as a "slimer" and as a retort operator . In 1981 and 1982 he lived in a trailer next to the Company's east bunk- house; in prior years he had lived in a company bunk- house and in town. During the 1981 seining season Hathaway worked from 8 to 2 a.m. and ate in the "soup kitchen upstairs." He said he had little free time between June 25 and July 20 and "maybe" had a couple of days off . He said he managed to make telephone calls, "do laundry, go to the bank, do some shopping." If it rained he would "maybe" postpone a trip a day or so, "but I'd go once a week anyway." Hathaway said he listened to the radio while working as a retort operator, and news broadcasts would mention the Union. Hathaway said he saw union representatives by the cannery in 1981 and talked to them "a few times." He said he wrote out some questions (some he thought of, others were suggested to him by others) and submit- ted them to Cotter. Cotter came to his trailer as a dinner 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD guest and furnished Hathaway with written answers (G.C. Exh. 33), along with copies which were given to others. Hathaway said he attended the two union meetings in 1979 but "ignored" the Union in 1980. Hathaway said he had no employment commitment for 1979 but did so in 1980 "if they had a seining season."46 He said he re- ceived no communications from the Union between sea- sons. Joseph Foss of Spokane, Washington, said he worked as an egg sorter in St. Elias' fish house from June 25 to mid-August 1981. He testified that he and 10 or 12 others would usually get off earlier at night than many others. He started work at 7 a.m. and he knew he would work at least until 9 p.m.; more often , however, it was later. He thought he got around 6 or 7 hours of sleep at night. Foss said he lived in the east bunkhouse and "would generally cross the bunkhouse across the street and either go in through the door on this side or the other side (both marked "D's")." Foss testified that he would see union representatives two or three times a week be- tween June 25 and July 20, 1981, when he went from his bunkhouse to the cannery. Foss thought he received a leaflet from Cotter on one occasion when he went to his bunkhouse on a break, and he remembered at another time "listening to a young lady speak with somebody else." Foss testified that he left the cannery once or twice a week "probably on an average of two times a week," and "whether it rained or not." He might make a tele- phone call, using the pay phone marked "PB " and usual- ly after standing in line, or run an errand. Foss received his mail at the St. Elias facility, includ- ing three mailings from the Union . He said he read the Cordova Times in 1981 and recalled reading about the ILWU. Jack Miller, whose permanent residence is in Seattle, Washington, has been vice president of operations for Morpac since 1979 . Prior to that time he was the firm's operations manager. Miller said that Morpac is "primari- ly a seafood freezing and canning facility," operating only part of the year. In 1981 Miller was in Cordova from April to early August, living at the Morpac facility, to first process Dungeness crab, herring and then salmon, including sockeye. Prior to the start of the peak or can- ning season on June 25 , 1981, Morpac had employed around 42 or 45 persons, referred to as the "Filipino crew" because "they are primarily of Filipino ances- try."47 They are, he related, "the most experienced," "our key people," and "the first to be re-employed." "For the most part they live in a company bunkhouse," Miller said. After the sockeye season (May 18 to June 25, 1981, when employees worked 2 or 3 days a week, about 8 or 10 hours a day) ended, the number of Morpac employees increased to 150 or 160 (although over 200 names were on the Excelsior list, G.C. Exh. 14). Miller thought no more than 40 of the bunkhouse employees 48 Hathaway indicated there "always is" a question whether there will be a seining season. 47 Asked on cross-examination if the Filipino employees had limited working knowledge of English, Miller replied that some "are quite well educated and there are some with college education, in fact " were in the bargaining unit ; some living in the bunk- houses were covered by contracts with other unions. Miller said 67 on the Excelsior list had worked for the Company prior to 1981, and 25 to 30 were Cordova resi- dents. 4 8 Transients employed by Morpac in 1981 lived in "vans" on company property (about six in number, Miller thought, near the warehouse marked "W"); some at Morpac Heights, an area of about 30 or 35 acres owned by Morpac ("we overlook the squatters who reside there," Miller said), and some at Hippie Cove. Miller stated that most employees living at Morpac Heights and at the Cove would travel to the cannery by walking along the road . Miller estimated the distance from Morpac to downtown at a quarter of a mile which he could walk in 12 to 15 minutes. Few services are available at the Morpac facility. There is a soft drink and candy machine in the coffeer- oom. There is a pay phone near the carpenter shop that employees may use. Miller stated that "we distribute mail into the pigeon-hole boxes" at the Morpac facility for employees, but "it's up to the employees to check on their mail." He recalled there was an occasion ("when I was away") when union material was delivered to the lunchroom for employees . He said employees come and go during break periods-by car or "afoot." "The weather in 1981," Miller said , "was no worse than any other year." During the 1981 peak season, Morpac's cannery em- ployees worked as many as 16 hours a day (about the same as in 1979 and 1980). Miller indicated that some workers would start at 7 :30 a.m., while others at 8 o'clock. Miller identified an exhibit (R. Exh. 6) that he prepared which, he said, indicates that during the 1981 peak season there were several days when Morpac shut down at 10 p.m. or earlier. As he explained it, the exhibit shows there were 5 days in the 1981 peak season-June 28 and 29 and July 1, 2, and 12-when the Morpac facili- ty had shut down at 5 p.m. Miller gave the daily sched- ule as follows: Breakfast is from 7:00 to 8 :00 in the mornings; coffee times were from 10:00 to 10:15; lunch is from 12:00 to 1:00; coffee in the afternoon from 3:00 to 3:15; dinner from 5:00 to 6:00; evening mug-up from 9:00 to 9:15. And if we worked past midnight why there would be another meal from midnight to 12:30. Morpac serves soup and crackers to its cannery work- ers at meal periods without charge. Persons living in the bunkhouse, except for the Filipino crew , are in "bargain- ing units with whom we bargain" (two carpenters, eight machinists, and six dock-mess crew), Miller said, and are furnished meals in the bunkhouse messhall, along with lodging, as part of a package. The Filipinos, according to 48 Miller stated that "locals who had worked for us previously would be granted first preferences," others with poor experience with the Com- pany would be hired next . On cross-examination he indicated that the transient work force for a particular year would not be known until around June 26, and no prior commitment is made to such a type of worker CHUGACH ALASKA FISHERIES 61 Miller, either have soup and crackers as other cannery workers do or "cook their own" in their bunkhouse.49 Miller was questioned about Morpac's "no-solicita- tion" policies and concerning conversations that in-house organizer Dennis and Union President Cotter testified that they had with him in July 1981. Miller said he spoke to Dennis before a shift began sometime in mid-July of that year around the time he had been advised by the Union that Dennis was an in- house organizer at Morpac. Miller said he "immediately checked to see if our no-solicitation policy was still posted." Finding that it was not, he had new copies pre- pared and placed throughout the plant. The no-solicita- tion policy referred to, expressed in General Counsel's Exhibit 21, had been sent to Morpac in 1979 and had been posted in the plant, according to Miller, since that time. Copies of the policy had to be replaced from time to time, as they would be torn or become wet, but, said Miller, he was "sure" a copy was on the front door of the Morpac office when he arrived back at the Morpac plant in Cordova in April 1981.50 Miller stated that when he approached Dennis in July 1981, "probably about July 12th" (the date that appears on G.C. Exh. 21), he asked her what she proposed to do on behalf of the ILWU. He thought she was not very specific but did indicate an intention to make employees aware of the Union and get it recognized. He said he told her: .. she should bear in mind she should restrict her Union activities to her time and not to our time; she could not discuss-yes, I told her to restrict her Union activities to her time and not to interfere with the workers during the routine course of their duties. Miller said he recalled no other conversations with Dennis about the Union except for a comment, made several days later when he thought she was talking to some people, like "who was she brainwashing." Miller testified that Morpac has owned the access road in front of the Morpac facility since 1980. He drew a line on Judge's Exhibit 3 showing the boundary of the Morpac property on the land side of the main road, indi- cating that Morpac owned the property on both sides and the road itself. Miller said "the road formerly ended right there," presumably at the Morpac facility, but that Morpac had "granted a right-of-way easement to the State of Alaska for the road." Miller recalled having two meetings in mid-July on the access road near where it intersects with the main road. Both Dennis and Cotter were there each time (although he indicated at one point he was not sure that Dennis 49 Miller said Morpac production begins a little later in the day than at other canneries, but he agreed on cross-examination that Morpac 's hours were "typical" of Cordova canneries Miller also acknowledged on cross- examination that workers' lunch and dinner periods on occasion were limited to half an hour. 50 Miller said he received the revised "current non-solicitation policy for Morpac," R. Exh. 7, from Attorney John McCormac's office on March 29, 1982 He said he issued immediate instructions for it to be du- plicated and posted. That policy was posted at the time of the hearing at least in six places, he said. was there on one of the occasions). Miller remembered one of the meetings in particular which took place around 9 p.m. one day. Cotter instructed Dennis to return to work, he said, and Miller told Cotter "in quite a heated discussion" to remove himself to the other side of the road "beyond the middle." Miller said he had "trouble" keeping signs posted in the area. "Private property" signs had been placed there at first, and after his arrival in Cordova in 1981 he had "no-trespassing" signs erected. Miller said there was "some other occasion" when he talked with Cotter in the same area (marked "L" on ALJ Exh. 3) about the fact that Cotter wanted to come on to Morpac's "property to speak to the workers about the Baruso article." Miller stated that Dennis had informed Cotter that the Company had posted an article on Baruso, and Cotter wanted to address that issue. Cotter did not indicate any desire to appear for any other pur- pose, Miller said. Miller acknowledged that he was aware of Cotter's letter to Attorney McCormac request- ing access to the Cordova canneries in 1981. Miller indicated that union representatives could com- municate with all employees by stationing themselves at two places-"at the end of the warehouse where it hits the road" and "at the apex of the access road and the main road." He said he had seen Cotter and another union representative in the area in 1980 and 1981.511 Miller said the only campaigning the Company did in 1981, other than posting of the newspaper article con- cerning Baruso, was to hold a 30-minute meeting around 1 p.m. in the casing warehouse a day or so before the election. Miller said "we didn't feel" a more intense cam- paign was necessary. George Anderson has been vice president of production of Chugach since October 1981. Before that time he was assistant plant manager reporting to Chugach President Jim Forsell and being responsible for, primarily, "work- ing with fishermen and tenders and . . . plant foremen and production foremen." He identified the aerial photo- graph of the Chugach facility (ALJ Exh. 2), which he said was located (shown on ALJ Exh. 1 at the end of the main road) approximately 2-1/2 miles from downtown Cordova. Anderson stated that Chugach processed "a few her- ring" in April 1981 but that it is primarily engaged in the processing of salmon. Processing of red salmon began on May 17, 1981; production increased then with the start of seining season on June 25. At the end of the seining season the cannery shut down. Chugach has contracts with the American Fishermen Union, the "Machinists," and Local 37, a Seattle-based cannery local, which, Anderson said, "represents our non-resident production workers." Anderson explained that local cannery workers hired in Cordova by Chu- gach would not be covered by the Local 37 contract but that all others would be. Local 37 employees live in a company-owned bunk- house; their wage rate as well as their lodging and meals 51 On cross-examination Miller agreed , however, that employees living on company property on the "water side" of the main road could go to the cannery without crossing public property. 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were provided for under the collective -bargaining agree- ment between Local 37 and Chugach. Anderson ex- plained that there were only two employees living on company premises (one in the bunkhouse) in 1981 who were in the bargaining unit and not covered by the Local 37 contract.52 The remaining members of the unit were "local hires" living in the Cordova area . Persons coming from the "Lower 48" to work at Chugach "are within Local 37's jurisdiction, not the Charging Party's," Anderson said. 53 Employees not residing on company property traveled to work either by a company van or had "their own transportation." Chugach had 18 Local 37 employees at the start of the "red season" on May 17, Anderson said . The number of such employees increased to 55 by June 20. About eight "local hired" were added by the start of the seining season on June 25.54 Anderson said persons with prior experience would be given preference in employment . He indicated those who "performed well" had a commitment for the next year as far "as [he is] concerned." Anderson said Local 37 and local residents performed "the same type" of work. He stated he had observed that Local 37's shop steward, Pedro Antron, talking with local resident workers .55 According to Anderson, Chu- gach had "better facilities" than other canneries and could produce more product in a given time period. During the 1981 sockeye season (May 17-June 25) Chu- gach operated only 3 or 4 days a week . During the sein- ing season Chugach operated 7 days a week, the can line starting at 8 a.m. (fishhouse at 7 a. m.) and closing down at 9 p.m. "The latest we would work would be 11:00 in the evening," Anderson said, and, apparently referring to the sockeye season, added that on some days Chugach would quit at noon or even earlier. Chugach employees generally ate at the same time (noon and 5 p.m.) and took their coffeebreaks at the same time. An additional meal would be provided if the cannery worked beyond midnight. Local hires did not pay for their meals, but they, unlike those residing in the bunkhouse, generally did not eat breakfast . Local resi- dents (and presumably other employees) were free to leave during breaktimes but few did apparently because of the distance from town. Anderson said he could recall no campaigning on the part of Chugach in 1981. 52 Anderson indicated employees living in the bunkhouse who are not covered by the contract with Local 37 paid for their meals. He said bunkhouse employees were allowed to have visitors. 53 See stipulations pp. 906-907 . Quoting Charging Party's president, Cotter "The best way to look at it is, in the case of Chugach and Chu- gach alone among the companies involved in this hearing, employees, production employees , who are hired in Seattle or outside the State of Alaska fall under the jurisdiction of 37 as non -resident employees All other production employees hired in Cordova or from the State of Alaska are resident cannery workers not falling under the jurisdiction of Local 37 and thus all under the bargaining unit which we are discussing in this hearing." 54 Chugach's Excelsior list is in evidence as G.C. Exhs . 12 and 13. An- derson explained that the "lined-out names" on G C. Exh. 13 are persons who quit work He said on cross -examination that 8 to 12 locals were employed in May and "20 or 30" or "maybe 35" in April when herring had been processed 55 Cotter had testified that Local 37's shop steward was to assist him in organizing workers for the Charging Party. Timothy Warrick, an Oregon resident, testified that he had worked for North Pacific in Cordova at a variety of jobs since 1978. He had lived at Hippie Cove, in a camper on St. Elia's premises and, in 1981, at Morpac Heights. Warrick said he arrived in Cordova in 1981 on June 20 and began working about 10 hours a day or so at first. Later he worked longer hours, starting around 6 or 7 a.m. and "didn't get off until late, usually an hour or so after the rest of the cannery was through." Warrick usually ate breakfast in his tent and had soup for "lunch and dinner" on cannery premises. Sometimes he would go uptown for a hamburger or to "the bunk- house if they were having something good." He said he would go to town two or three times a week for mail or groceries. The weather did not bother him, he said- "you've got to live in the rain around here." Warrick thought he was fairly well informed about the Union and acknowledged that he "probably pretty much" knew the Company's position. He said he "read the paper ," picked up union literature in town, and talked matters over with his coworkers at the cannery. Warrick stated that two or three union "mailings" came to him at the cannery in 1981, but he received nothing from the Union during the winters of 1979 or 1980. He said he had a radio in Cor- dova but recalled no mention of the Union in any broad- cast. Dominador V.. Sibyayan, whose permanent address is in Seattle, worked for Morpac during the 1980 and 1981 seasons and lived in a company bunkhouse both years.56 He speaks both Filipino and English. Sibyayan did not recall seeing union representatives on the main road outside of the Morpac cannery in 1981 but remembered meeting with in-house organizer Dennis in a group at the plant during breaktime that year . He said he also discussed the Union with the 20 or 25 others living in the bunkhouse. Sibyayan said he worked in May and June 1981 when his workdays were not so long. But, he said, he went uptown "several times" during the peak season prior to the election when he usually worked from around 5 a.m. until 8 or 9 p.m. He said he received mail, including leaf- lets, from the Union at Morpac. He was not sure, but he thought he had picked up some leaflets while off the company premises. He said he read the Cordova newspa- per while in Cordova. Franco Descargar, a resident of Sun Valley, California, said he worked for Morpac during the 1979, 1980, and 1981 seasons . In 1981 he started work in April and lived at the Morpac bunkhouse along with 25 others or more. At first he worked a 6 a.m. to 9 or 10 p.m. schedule, and later he said "sometimes I worked 24 hours." He stated that he saw union representatives "a lot" outside of Morpac. Also, he said he went uptown on "personal er- rands" about three times a week during April, May, June, and July and would see union representatives "roaming the street." "They didn't bother to talk to me," however, he said . He received union literature at ss Sibyayan testified he was currently employed by Morpac, working as a packer in the freezer , at the time of the hearing. CHUGACH ALASKA FISHERIES 63 Morpac, and he and the others living in the bunkhouse discussed the Union . 57 He said he knew in-house orga- nizer Dennis who, he said, "used to talk a lot about the Union every breaktime." Discussion and Conclusions The Supreme Court in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), had drawn a distinction of "substance" in evaluating union organizing activity by employees and by nonemployees (i.e., union organizer). The Court held in that case that an employer may law- fully prohibit a union from distributing literature by non- employees so long as the union can reach the employees by "reasonable efforts . . . through other available chan- nels of distribution" and if, in doing so, it does not dis- criminate against the union. The pertinent part of the de- cision reads: . .. an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution. In these circumstances the employer may not be com- pelled to allow distribution even under such reason- able regulations as the orders in these cases permit. This is not a problem of always open or always closed doors for union organization on company property . Organization rights are granted to work- ers by the same authority, the National Govern- ment, that preserve property rights . Accommoda- tion between the two must be obtained with a little destruction of one as is consistent with the mainte- nance of the other. The employer may not affirma- tively interfere with organization; the union may not always insist that the employer aid organization. But when the inaccessibility of employees makes in- effective the reasonable attempts by nonemployees to communicate with them through the usual chan- nels, the right to exclude from property has been re- quired to yield to the extent needed to permit com- munication of information on the right to organize. The determination of the proper adjustments rests with the Board. Its ruling, when reached on finding of fact supported by substantial evidence on the record as a whole [footnote omitted] should be sus- tained by the courts unless its conclusions rest on erroneous legal foundations . Here the Board failed to make a distinction between rules of law applica- ble to employees and those applicable to nonem- ployees. The distinction is one of substance . No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the em- ployer can demonstrate that a restriction is neces- sary to maintain production or discipline . Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803. But 54 Descargar said he had seen different pieces of union literature, in- cluding G.C Exhs. 25 and 30 no such obligation is owed nonemployee organizers. Their access to company property is governed by a different consideration. The right of self-organiza- tion depends in some measure on the ability of em- ployees to learn the advantaged of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union ef- forts to communicate with them , the employer must allow the union to approach his employees on his property. No such conditions are shown in these records. In 1972 the Supreme Court in Central Hardware Co. v. NLRB, 407 U.S. 539, after noting that "Babcock stated the guiding principle for adjusting conflicts between Sec. 7 rights and property rights," stated at 544-545: The principle of Babcock . . . requires a "yielding" of property rights only in the context of an organi- zation campaign. Moreover, the allowed intrusion on property rights is limited to that necessary to fa- cilitate the exercise of employees' Sec. 7 rights. After the requisite need for access to the employer's property has been shown, the access is limited to (i) union organizers; (ii) prescribed nonworking areas of the employer's premises; and (iii) the duration of organization activity. In short, the principle of ac- commodation announced in Babcock is limited to labor organization campaigns, and the "yielding" of property rights it may require is both temporary and minimal. In 1978 in Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180 (1978), the Supreme Court indicated that the burden of proving in- accessibility and the ineffectiveness of alternate means of communication so as to entitle a union access to an em- ployer's property, was upon the union and that such burden was a heavy one (at 205-206): Experience with trespassory organizational solicita- tion by nonemployees is instructive in this regard. While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To gain access, the union had the burden of avowing that no other reasonable means of commu- nicating its organizational message to the employee exists or that the employer's access rules discrimi- nate against union solicitation . That the burden im- posed on the Union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation prin- ciple had rarely been in favor of trespassory organi- zational activity.41 41 In the absence of discrimination , the union's asserted right of access for organizational activity had generally been denied except in cases involving unique obstacles to non-trespassory methods of communication with the employees See, e g NLRB v S & H Gro- singer's Inc., 372 F.2d 26 (CA 2 1967); NLRB Y. Lake Superior Lumber Corp, 167 F.2d 147 (CA 6 1948). 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The United States Court of Appeals for the Seventh Circuit in Montgomery Ward & Co. v. NLRB, 692 F.2d 1115 (7th Cir. 1982), discusses "post-Babcock & Wilcox cases, "including Hudgens v. NLRB, 424 U.S. 507 (1976), and Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978), and points out that Babcock & Wilcox remains "an impor- tant starting point for analysis of any solicitation activity by nonemployees." The court also notes that under Bab- cock & Wilcox it is the "Board's task to evaluate the rela- tive strength of the competing interests involved and to balance them."58 The court in Giant Food Markets v. NLRB, 633 F.2d 18 (6th Cir. 1980), involving area stand- ards picketing, stated (at 22-23): Through Babcock & Wilcox the Board is charged with the knowledge that a private property owner may legally bar union activity if "reasonable efforts by the union through other available channels of communication will enable it to reach the employ- ees. .. . When communication by mail, phone, or in person is possible and feasible, the employer may be able to bar absolutely nonemployees from its prop- erty. The General Counsel argues that "unless the employer can show that access will significantly harm its oper- ation, nonemployee organizers are entitled to access to the employees on the employer's property," and goes on to state that "a combination [of] factors related the em- ployees' living and working conditions rendered ineffec- tive the means of communication normally used in orga- nization campaigns." The factors listed by the General Counsel are these: [1] the transient nature of the work force; [2] the language barriers that existed because English was not the primary language of a significant number of the employees; [3] the size of the bargaining unit; [4] the shortness of the season and of the time the Union had to reach the employees prior to the 1981 election; [5] the prolonged periods of rain Cordova experiences during June and July; [6] the high per- centage of employees who lived on the Respond- ents' premises where the Union could not visit, in tents, or at addresses that could not be easily ascer- tained and who ate the free meals provided by Re- spondents; and [7] last but probably most important, the incredibly long and often irregular hours worked during the peak season. I believe, and find, that the General Counsel has not properly assessed some of the factors cited. Nor do I be- lieve that he has properly applied the Babcock & Wilcox balancing test with respect to Chugach, St. Elias, or North Pacific . It may be that a union need not exhaust every means of communication in attempting to reach 58 The court states that the case before it involved application of a no- solicitation rule without having to decide "the issue of access alone." The Court, however, expressed "doubts whether reasonable efforts by the union would in fact have enabled it to reach the employees with its mes- sage." employees during an organizing campaign , certainly where an attempt to use alternative means would be ob- viously futile. But in order for a union to gain access, surely it has the burden of showing that it made a dili- gent organizational effort before it can be heard about the lack of access.59 There can be no denying that contact with many of the bargaining unit employees by the Union herein may have been difficult . But the difficulty of communicating with unit employees would have been reasonably over- come with respect to nearly all except for employees of Morpac. Thus, I find that the Union, through the Gener- al Counsel, proved a need for access to Morpac's prem- ises to communicate with its employees but not as to the employees of the other three Respondents. The first five factors listed by General Counsel furnish little aid to the Union and the General Counsel on this record. The work force in the bargaining unit was, to be sure, transient in nature, but many were known to the Union. The Union was furnished with Excelsior lists and, no doubt, in most cases had as much information about the place of employees' lodgings and whereabouts of em- ployees not working as the employer Respondents did. As Respondents point out in their brief, about three-fifths of the unit membership were either local residents or had been previously employed by the Respondents. Five hundred plus employees in a bargaining unit is a sizeable group, to be sure, but a union with an appropriate number of organizers should be able to communicate with such a number of workers within the time allotted. Right of access to an employer's premises cannot be predicated on limited union resources or lack of effort on its part. The language problem, with which the Respond- ent Employers also had to deal in communicating with workers, is entitled to little weight here . Should it have access, the Union would have still had the problem of communicating with the workers. The burden of furnish- ing any necessary translators is the Union 's, not the Re- spondent Employers. Rainfall in Cordova in June and July is unusual, but it hardly provides a basis for granting access . And, of course, the flooding in Cordova in 1981 occurred after the election. The sixth and seventh factors are more worthy consid- erations, especially the latter-i.e., the long hours worked during the peak season-as it operated, more than anything else, to limit the Union 's communication with many bargaining unit employees. The Union could have made more of an effort by contacting employees at Morpac Heights, Hippie Cove, or along the road as they went to and from work, but its failure to do so, under the circumstances, is understandable . The employees had little time of their own , and most of the workers used it 19 Cf. Hutzler Bros Ca Y. NLRB, 630 F.2d 1012 (4th Cir. 1980). The court in Hutzler Bros , which denied enforcement of a Board order allow- ing union access to a Towson, Maryland department store's premises for lack of proof that the union had no other reasonable means of communi- cating with employees, stated that a "union's organizational effort, or lack of it, however, remains a factual circumstance to be weighed in de- ciding if the union has met its burden of proof." CHUGACH ALASKA FISHERIES 65 to transact personal business (bathe, wash clothes, go to the post office, store, etc.) or rest.so There were some employees (but not a "high percent- age," as the General Counsel asserts) who were not read- ily accessible because they lived on cannery property, either in bunkhouses, tents, trailers, or other "housing." Such workers need not have left the cannery premises to go to work, eat, or wash themselves or their clothes, and conceivably some may not have done so in 1981 between June 25 and the July 21 election, although most surely did so. The General Counsel suggests that Respondents' furnishing of "free meals" (actually little more than soup except in the case of Respondent Chugach which sup- plied its workers with meals) aids the Union's cause for access. If so, the benefit to the Union is slight . While fur- nishing of food and beverage to the cannery workers may have kept them on the premises during their regular breaks for a time while such were consumed , I believe the effect in isolating or restricting employees from the Union, on that basis, was not really significant. Thus, having considered the entire record and applica- ble law, I am constrained to find that the Union, through the General Counsel , did meet its burden with respect to Respondent Morpac and is entitled to reasonable access with respect to that Respondent 's premises in Cordova but not as to the other Respondents . The Union worked diligently to communicate with employees of Morpac, which resisted the Union's efforts to do. The record sat- isfies me that working conditions at Morpac were such that they were placed "beyond the reach of union effort to communicate with them" and, therefore, "the employ- er [Morpac] must allow the union to approach [its] em- ployees on [its] property" (Babcock & Wilcox, supra, 351 U.S. at 113). The testimony of General Counsel's witnesses Cotter, Van Bronkhorst, and Dennis attest to the persistent effort of the Union to communicate with Morpac work- ers. The lack of the Union's success in reaching workers of Morpac was not due to the lack of effort on the part of the Union. The Union's attempt to make contact with Morpac workers on the main and access roads in front of as The number of hours worked involved conditions of employment relevant in determining whether employees are within or "beyond the reach of reasonable union efforts to communicate with them." I do not fault the Union for not making (greater) use of the TV scanner, the radio, or the weekly newspaper in Cordova. Under the circumstances, it is likely such media would have limited effectiveness in enabling the Union to reach the cannery workers. Further, conditions at Morpac Heights and Hippie Cove did not lend themselves to organizing activities especially during rainy weather. (I agree with the General Counsel that the Coast Guard dock was not an appropriate place for meeting with cannery em- ployees, but the site of a proper meeting place is of little significance in the present posture of the proceeding.) The failure of the Union to make a greater effort to make contact with the cannery workers living in the local Cordova area away from Respondents ' premises, however, is not so understandable. It should also be pointed out that the fact that an employer has a pree- lection meeting with his employees does not entitle a union to enter upon the employer's premises The General Counsel has not challenged any- thing that was stated during Respondents' preelection meetings. Also, the fact that the Respondents posted articles reporting on the Tony Baruso incident does not entitle the Union to enter upon their premises , whether the article was accurate or not . Likewise, reference to or comment on the incident by the Respondents during a preelection meeting would not give rise to a right of access by the Union . Cf. United Steelworkers v. NLRB, 646 F.2d 616 (D.C. Cir. 1981). Morpac's facility was met with undue resistance by the Company. Morpac Vice President Miller himself cor- roborated the testimony of the General Counsel's wit- nesses that the Company prevented handbilling and other organizing activity on what was undoubtedly "public" property.61 While the Union made a sufficiently diligent effort to reach Morpac workers entitling it to access to that can- nery's premises, the record does not persuade me that it did so with respect to Chugach, St. Elias, or North Pa- cific. Union President Cotter himself acknowledged on the stand that "we never really concerned ourselves with Chugach with nine people in the bargaining unit ." Union Representative Van Bronkhorst said she delivered some leaflets to the union steward at Chugach but never both- ered doing any handbilling there. The Union made no great effort to communicate with employees of St. Elias. Van Bronkhorst thought she probably leafletted St. Elias only on three mornings. There was a public lot next to St. Elias where workers parked, but it appears that the Union made no effort to engage in any organizing effort there . The Union had no in-house organizer at St . Elias (or at Chugach). Most, if not all, of St. Elias employees living in the (West) bunk- house undoubtedly went to town a number of times during the peak season prior to the election and were ac- cessible to the Union. While the Union designated an in -house organizer at North Pacific, its effort at organizing that cannery was less than diligent . Tift, the in-house organizer, recalled seeing Union President Cotter only on one occasion in front of the Morpac facility. Van Bronkhorst was vague about her visits to Morpac, although she had "a recollec- tion of leafletting" with Glenn Susan on at least one oc- casion there. Again, most, if not all, of the unit employ- ees living in the Company's bunkhouse undoubtedly left the cannery premises during the peak season before the election on occasion and were accessible to the Union. The record reveals that not only did Morpac violate Section 8(a)(1) by denying reasonable access to the Union, it also violated the same provision of the Act by maintaining and enforcing an invalid no-solicitation rule. Paragraph 9 of the General Counsel's original com- plaint62 puts in issue a part of Morpac 's no-solicitation 81 It is clear, even by Miller's own testimony, that the main road in front of the Morpac facility was a public thoroughfare and that he had no right to request the union organizers to move off it or to one side of it Even if it had not been a public road, it was sufficiently "public" that Morpac could not have lawfully prevented the Union 's organizing activi- ty thereon See, for example, Scott Hudgens, 230 NLRB 414 (1977); also Kelly-Springfield Tire Co , 265 NLRB 511 (1982). 62 I hold the Morpac no-solicitation rule that was applied in 1981, al- though in effect earlier as Miller testified, was unlawful without consider- ing whether it, or the revised rule that was posted in March 1982, was invalid under the Board 's 1981 T. R. W. Inc , decision, supra. Cf. Documa- non, Inc., 263 NLRB 706 (1982) The revised Morpac no-solicitation rule was drafted and posted following issuance of the Board's T.R. W. Inc de- cision, well after the 1981 organizing campaign had been concluded. The revised rule was challenged only on the eve of trial and was not fully and fairly litigated. Cf. Grumman Flexible Corp., 264 NLRB 227 (1982) In any event, the order being entered herein will provide relief needed on his issue and sufficient guidance to Respondent Morpac for the future 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD policy-i.e., the second paragraph which prohibited em- ployees from distributing any material "in work areas at any time whether the employee is on or off work" and from "soliciting" during employees' "work time"-that was posted by Morpac Vice President Miller in July 1981, about the time he learned from the Union of its in- plant organizers at Morpac. It is to be noted that the part of the no-solicitation policy challenged is concerned with activities of employees and that under Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1956), the "rules of law applicable to employees and those applicable to nonem- ployees" are different. (Babcock & Wilcox, 351 U.S. at 113.) In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the Court pointed out (at 571-572): The Court recently has emphasized the distinction between the two cases: "A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer's property, since the employer's manage- ment interests rather than his property interests were there involved." Hudgens v. N.L.R.B., 424 U.S. 507, 521-522, n. 10, (1976); see also Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 543-545. The Court also stated in Eastex (at 570): In Republic Aviation the Court upheld the Board ruling that an employer may not prohibit its em- ployees from distributing union organizational liter- ature in nonworking areas of its industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. This ruling obtained even though the employees had not shown that distribu- tion off the employer's property would be ineffec- tive. 324 U.S. at 798-799, 801. In the Court's view, the Board had reached an acceptable "adjustment between the undisputed right of self-organization as- sured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments." Id., at 797-798.21 21 In Republic Aviation the Court also upheld Board rulings that employees may solicit other employees to join a union on the em- ployer's property dung nonworking time, and may wear union in- signia on the employer's property. The Board since has distin- guished between distribution of literature and oral solicitation, holding that the latter but not the former may take place in work- ing areas during nonworking time. Stoddard-Quirk Mfg. Co, 138 NLRB 615 (1962). In NLRB v. Magnavox Co., 415 U.S. 322 (1974), the Court stated (at 327): We agree that a ban on the distribution of union literature or the solicitation of union support by em- ployees at the plant during nonworking time may constitute an interference with Sec. 7 rights. The Board had earlier held that solicitation outside working hours but on company property was pro- tected by Sec. 7 and that a rule prohibiting it was "discriminatory in the absence of evidence that spe- cial circumstances make the rule necessary in order to maintain production or discipline." In re Peyton Packaging Co., 49 NLRB 828, 843-844. We ap- proved that ruling in Republic Aviation Corp., 324 U.S. 793, 801-803... . ... limitation of the right of in-plant distribution of literature to employees opposing the union does not give a fair balance to Sec. 7 rights, as the Board ruled in the present case. For employees supporting the union have as secure Sec. 7 rights as those in opposition. The Board's position, as noted, has not always been consistent. But its present ruling is, we think, quite consistent with Sec. 7 rights of employ- ees. It is the Board's function to strike a balance among "conflicting legitimate interests" which will "effectuate national labor policy," including those who support versus those who oppose the union. NLRB v. Truck Drivers Union, 353 U.S. 87, 96. Moreover, as respects employers, the rights of solic- itation of employees by employees oonoerning Sec. 7 rights are not absolute. As we noted in Republic Aviation Corp. the Board may well conclude that considerations of produc- tion or discipline may make controls necessary. No such evidence existed here and the trial examiner so found. Accordingly, this is not the occasion to bal- ance the availability of alternative channels of com- munications against a legitimate employer business justification for barring or limiting in-plant commu- nications. With the above basic guidelines in mind, I must find that the Morpac no-solicitation rule which Morpac Vice President Miller applied in July 1981 was violative of Section 8(a)(1). The rule was, at best, ambiguous.63 As paragraph 9(a) of the complaint alleges, the Morpac rule does not define working time. The rule could have been interpreted as prohibiting distribution of material or any organizational activity during breaks or meal times. Respondent Morpac could have easily enough explained that its no-solicitation rule did not forbid organizational activities during such periods. Re- spondent introduced no evidence to show that produc- tion or discipline made it necessary to restrict employees from engaging in organizational activity during non- working time.64 I reject the General Counsel's contentions that the Morpac rule was promulgated in response to union orga- nizing activities and that it was discriminatorily applied to union organizing activity. I credit Miller's testimony that the Morpac no-solicita- tion rule had been in effect and posted well before mid- July 1981, although he became aware at that time, when 63 In upholding the Board's order against an ambiguous no-solicitation rule ("against solicitations 'on company time and on company property"') in NLRB Y. Miller, 341 F.2d 870 (2d Cir 1965), the court said (at 874). The true meaning of the rule might be the subject of grammatical controversy. However, the employees of respondent are not gram- marians. The rule is at best ambiguous and the risk of ambiguity must be held against the promulgator of the rule rather than against the employees who are supposed to abide by it. Cf. Essex International, 211 NLRB 749 (1974), modified in T.R. W., Inc., supra. 64 Nor is it clear what constitutes "work areas" under the Morpac rule, although the complaint does not focus on this aspect of ambiguity. CHUGACH ALASKA FISHERIES 67 advised of the appointment of in -house organizers, that it needed reposting (except "on the front door of the office" where it had remained posted). Such facts do not warrant a finding that the rule was promulgated or ap- plied in violation of the Act. See North American Rock- well Corp., 195 NLRB 1046 (1972). There is no evidence that Respondent Morpac knowingly allowed distribution of any material or solicitation for any cause while deny- ing similar activities on behalf of the Union. There remain the issue of whether on July 12 Morpac Vice President Miller unlawfully restricted Dennis from talking with other employees about the Union during working hour. Miller's inquiry as to "what he proposed to do on behalf of the ILWU" may have been unseemly, but it is to be borne in mind that Dennis was not the usual Morpac cannery worker. She was an in-house union organizer, and Miller had just learned that fact from the Union . He was undoubtedly interested in know- ing what organizing activities she might be engaging in on company premises, and he "told her to restrict her union activities to her time and not to interfere with the workers during the routine course of their duties." The testimony of Dennis, which impresses me as otherwise reliable, is not persuasive on this point. She indicated ini- tially that Miller had uttered antiunion remarks, suggest- ing that the presence of a union could affect a wage in- crease. She said Miller went on to say that the company policy would not allow her "to talk to anybody about the Union on the company property during working hours." On cross-examination , however, she acknowl- edged that on a prior occasion she had to clarify her tes- timony on this issue and that she agreed that Miller on the date in question had told her that she was not al- lowed to talk with employees about the Union during Miller's worktime in the Company's work areas. The credible evidence of record does not sustain paragraph 8 of the complaint, and it will be dismissed. CONCLUSIONS OF LAW 1. Each of the Respondents is an employer engaged in commerce within the meaning of Section 2(6) and (7) or the Act. 2. The Union is a labor organization within the mean- ing or Section 2(5) of the Act. 3. Respondent Morpac, Inc. has interfered with, re- strained, and coerced employees In violation of Section 8(a)(1) by (1) denying nonemployee organizers of the Union reasonable access to its Cordova, Alaska facility for the purpose of soliciting employees on behalf of that Union and for the purpose of communicating with that employees concerning organizational matters, and (2) maintaining and enforcing a rule which did not clearly advise employees that they could engage in union orga- nizing activities by soliciting on behalf of the Union during their free or nonworking time even though on the premises of Morpac, Inc. 4. The record does not establish any other violation of the Act as alleged. As a remedy, I shall recommend that Respondent Morpac, Inc. cease and desist from engaging in unfair labor practices found and take certain affirmative action to effectuate the policies of the Act. [Recommended Order omitted from publication.]