Cannery, Warehousemen, Food Processors, Local 748

National Labor Relations Board - Board Decisions

Dec 5, 1979

246 N.L.R.B. 758 (N.L.R.B. 1979)

DE(ISIONS O1: NATIONAL LABOR REI.A IONS BOARDI
Cannery, Warehousemen, Food Processors, Drivers
and Helpers, Stanislaus and Merced Counties, Lo-
cal 748, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
and J. R. Wood, Inc. Cases 32-CB-354 and 32
RC 396
December 5, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBEIRS PENEI.I.O
AND TRUESDALE
On August 6, 1979, Administrative Law Judge
Leonard N. Cohen issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed an answering brief. The Charging Party also
filed limited cross-exceptions and a brief in support of
its cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and attached
Decision in light of the exceptions and briefs, and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge, except as
modified herein, and to adopt his recommended Or-
der.
1. We agree with the Administrative Law Judge
that agents of Respondent threatened employees with
deportation during the election campaign, thereby
violating Section 8(b)(1)(A) of the Act and also inter-
fering with the employees' right to a fair and free
election.2 The record is clear that such threats were
made by persons handing out union literature at
plant entrances during the campaign. In identifying
those uttering the threats as paid officials and/or em-
ployees of Respondent, the Administrative Law
Judge relied on the cumulative weight of three fac-
tors. We find, however, that testimony given by
Union Secretary-Treasurer Britt firmly establishes an
agency relationship between the handbillers and Re-
spondent, and we place no reliance on the remaining
I Respondent and the Charging Party have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect
to credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Drc Wall Prodis,.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
: The election was conducted on September 19. 1978. pursuant to a Stipu-
lation for Certification Upon Consent Election. The tally was 250 for. and
179 against. the Union.
two factors cited by the Administrative Law Judge.'
Thus, Britt, who was in overall charge of the cam-
paign at the employer's plant, stated that he autho-
rized only Terry Shorey (an official of Teamsters
Joint Council 38), Ray Mendoza (an official of the
Western Conference Teamsters), and 20 business
agents employed by Respondent to pass out cam-
paign literature at the plant; that he did not direct
anyone not employed by the Union to handbill: and
that, to his knowledge, no one other than those desig-
nated by him engaged in such distribution of cam-
paign literature. Furthermore, Respondent did not
present any evidence to show that anyone other than
Teamsters officials and/or employees handbilled dur-
ing the campaign.4 Accordingly. we conclude that
agents of the Union must be held responsible for the
preelection threats of deportation to employees.
2. We do not agree with the Administrative Law
Judge that Julia Duncan's repetition of Respondent's
threats of deportation to other employees makes her
statements directly attributable to the Union. Rather,
we view Duncan's comments as evidence that Re-
spondent's threats to Duncan were disseminated by
her to at least 15-20 other employees.5 Therefore, as
Duncan did not originate the threats, but rather sim-
ply conveyed them to others, there is no significant
evidence to support the Employer's objection that the
election should be set aside on the ground that third-
party conduct interfered with the election. Accord-
ingly, Objection 4 shall be, and it hereby is, overruled.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Cannery. Warehousemen,
Food Processors, Drivers and Helpers. Stanislaus and
Merced Counties, Local 748, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Modesto, California, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
I' IS FUIIRtIHR ORD()IERI) that the election conducted
on September 19, 1978, among the Employer's em-
ployees be, and it hereby is, set aside, and that Case
32 RC-396 be, and it hereby is, severed and re-
' Ihe Administrative Law Judge gave some consideration to the fact that
the handhillers wore jackets shich bore the I eamsters Iogl and that the
hatidhillers always spoke in terms of "we" and "us" when addressing em-
ployees regarding Respondent.
' Britt was never present at the plant. lHowever, erry Shorey and Ray
Mendoza, the Iwo uniotn officials who directed the campaign at the plant site
and who would have had direct knowledge as to whether unauthorized per-
sons ever distributed union literature, did not testily
'See Prellsional Reeoarch, In<, dI/hba e-so'itde lolpirat, 218 NI.RB 96
(1975)
246 NLRB No. 121
758
CANNERY, WAREHOUSEMEN, FOOD PROCESSORS. OC(AL 748
manded to the Regional Director for Region 32 fr
the purpose of conducting a new election at such time
as he deems that circumstances permit the free choice
of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
SAIMIIN ()It IlL C(ASI
LE}ONARD N. COiEN, Administrative L.aw Judge: This
case was heard before me on March 1, 1979, in Atwater,
California, pursuant to a complaint in Case 32 CB 354,
issued by the Regional Director of the National Labor Re-
lations Board for Region 32 on November 28, 1978.' The
complaint is based on the charge filed by J. R. Wood, Inc.,
hereinafter called the Employer. The complaint against
Cannery, Warehousemen, Food Processors, Drivers and
Helpers, Stanislaus and Merced Counties, Local 748, affili-
ated with International Brotherhood of Teamsters. Chauf-
feurs, Warehousemen and Helpers of America, hereinafter
called the Union or Respondent, alleges that Respondent
has engaged in certain violations of Section 8(b)(l)(A) of
the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, etc., hereinafter called the Act, by threatening em-
ployees that the Union would call the Immigration and
Naturalization Service if the Union lost the election. On
June 28 the Union filed a petition in Case 32- RC-396 seek-
ing a representation election among the Employer's produc-
tion and maintenance employees and, pursuant to a Stipu-
lation for Certification Upon Consent Election, an election
was conducted on September 19 among the employees in
the stipulated unit. The tally of ballots issued on that date
shows that, of the approximate 576 eligible voters, 447 cast
ballots of which 250 were for and 179 were against petition-
ing the Union. Thereafter, on September 26, the Employer
filed six objections to the conduct affecting the outcome of
the election. On November 28 the Regional Director issued
his report and recommendation in which he approved the
Employer's request to withdraw Objections I and 5, over-
ruled Objection 2 and a portion of Objection 6, and recom-
mended that a hearing on Objections 3 and 4 and a portion
of Objection 6 be consolidated for hearing with the com-
plaint allegations in Case 32-CB 354. Thereafter, the Em-
ployer filed timely exceptions to the Regional Director's
recommendation with respect to Objection 2, and on Feb-
ruary 1, 1979, the Board issued a Decision and Order
adopting the Regional Director's findings and recommen-
dations.2
All parties have been afforded full opportunity to appear.
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based on the entire record and the
briefs filed on behalf of the parties, and upon my observa-
tion of the demeanor of' witnesses, I make the following:
Hereinafter all dates are in 1978. unless otherwise noted.
The objections, which are subject to the instant proceedings. are set f;lrth
in their entirety elow:
Ohjection No . The Union. its agents. its representatives and its
supporters, unlawfully induced. intimidated, coerced and threatened
employees to support it and/or to refuse to support the Employer which
threats. intimidation. coercion and other unlawful inducements upset
FININ(S ()O FA('I
1. JRISDI( II0tN
At all material times herein, the Employer has been a
('alifirnia corporation with an office and principal place of
business located in Atwater. California. where it is engaged
in the processing of frozen foods. During the past 12
months, in the course and conduct of its business opera-
tions, it sold and shipped goods and services valuted in ex-
cess of $50,000 directly to customers located outside the
State of California. Accordingly. I find that at all times
material herein it has been an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2). (6). and (7) of the Act.
1I. lH ILABOR OR(ANIZA I t)N N\ ()O I )
The Union is and has been at all material times herein a
labor organization within the meaning of Section 2( 5) of the
Act.
III. IHE FA( IS
A. Undisputed Background Facts
The Employer's operations at its Atwater facility are sea-
sonal in nature with its peak season running from July
through the end of September. During this peak season. the
Employer operates on a two-shift basis, 7 a.m. to 3:30 p.m.
and 4 p.m. to I a.m. During the period in question, approxi-
mately 300 individuals were employed on the first shift and
approximately 200 were employed on the second shift. Of
the approximate 500 employees, approximately 200 or 40
percent had Spanish surnames. All the incidents involved in
these proceedings concerned alleged conversations with and
among employees employed on the second shift in a pro-
cessing department comprised of approximately 15-20 em-
plo2yees. The record further discloses that Spanish was the
predominant language used b these employees and all the
alleged conversations relevant to these proceedings took
place in Spanish.
Robert Britt, Respondent's secretary-treasurer, was re-
sponsible for the overall conduct and coordination of Re-
spondent's organizing campaign including the campaign at
the Employer. This campaign, which commenced in late
the laborator) conditions necessary to the conduct f a free election,
interfered with the operation of the Board's fair election proc-eses and
the rights of the voters and materialls and suhstantiall .ffected the
outcome of the election
Obhection vNo 4 Third parties unlawfully induced, ntimidated, co-
erced and threatened employees to support and/or to refuse to support
the mploer which threats, intimidation. coercion and other unlawftul
inducements upset the laboratory conditions necessars to the conduct ot
a free election. interfered with the operation of the Board's fair election
processes and the rights of voters and materially and substantially af-
fected the outcome of the election
Ohbeclion No t5 The manner in which the election was conducted
upset the laborator 5 conditions necessarN to the conduct of '; fair elec-
tion and materially affected the results thereof, interfering with he
rghts of voters.
With respect to Objection 6. the only aspect set for hearing insolved the
voting instructions given by the Board agent conducting the election to one
voter
75
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August, was essentially directed, under Britt's supervision,
by Terry Shorey. an official of Teamsters' Joint ('ouncil 38,
and Ray Mendoza, an official of the Western onference
Teamsters.' Britt either personally prepared or supervised
the preparation of all union literature in both Spanish and
English to be used in the campaign and issued directives to
Shorey, Mendoza, and Jim Trunnell, Respondent's senior
business agent, as well as the approximately 19 other busi-
nesss agents of Respondent involved in the campaign, to
pass out this literature at the Employer's plant during the
approximately 2- to 3-week period immediately preceding
the election.'
Although Britt never personally appeared at the plant, he
testified that he did not direct anyone who was not em-
ployed by Rspondent' to hand out material at the plant
and that, to his knowledge, no one other than the above
referred to representatives handed out any union materials
at the Employer's facility. Other than Britt, no other indi-
vidual, who was employed by Respondent and engaged in
any handbilling at the Employer's facility, was called to
testify.
At approximately 6 a.m. on the morning of the election,'
Britt telephoned the Washington, D.C., office of Congress-
man B. F. Sisk and requested that Sisk arrange to have
border patrol agents of the U.S. Immigration and Natural-
ization Service (hereinafter referred to as INS) come to the
Employer's plant and station themselves at the entrance
during the election. 7 A representative of Congressman
Sisk's office informed Britt that Congressman Sisk would
not honor Britt's request.
In explaining this call, Britt testified that at some uniden-
tified time prior to September 19, the day of the election, he
had received information from someone involved in the
election campaign' that the Employer planned to bring in
100 illegal aliens to vote in the election. Despite Britt's al-
leged awareness of the Employer's plot, Britt at no time
either prior to or during the election contacted any official
of the Employer or the Board with this information. Like-
wise, Britt did not instruct Shorey to raise this issue at the
preelection conference with the Board agents and, in fact,
there is no evidence that this matter was discussed at that
time.'
The petition in Case 32 RC 396 was filed by Shorey. who also appeared
at the preelection conference and signed the tally of ballots on behalf of
Respondent.
' Respondent stipulated that Shorey and Mendoza, as well as the approxi-
matel) 20 business agents who participated in the election campaign. were
agents of Respondent within the meaning of Sec. 2(13) of the Act. Of this
group, at least nine were men with Spanish surnames who spoke fluent Span-
ish.
'Other than Shorey and Mendoza, who were both frequently at the plant.
'The hours for the election were 8 to 10:30 a.m. and 5 to 7:30 p.m.
Bntt initially called the Manteca. California, office of Congressman
McFall for assistance in this matter. Britt was then referred to Congressman
Sisk who was the Congressman within whose congressional district the plant
was located.
I Britt could not recall the source of this information other than that it
emanated from either one of Respondent's business agents or an employee of
the Employer.
I Britt. an officer with Respondent for over 10 years. testified that he has
participated in many National Labor Relations Board elections and was
aware that if an individual whose name did not appear on the eligibility list
attempted to vote, he would be challenged by the Board agent and his ote
would be a challenged ballot.
B. The Unfitir Lahor Practice. Objections 3 and 4
Three employee witnesses. Carmen Junez, I rinidad San-
doval, and Dominga Romiro, were called to testifty by ei-
ther the General Counsel or the Employer/Charging Party
with regard to the alleged threats of possible deportation
made by Respondent's agents who were engaged in hand-
billing during the approximately 10-day period immedi-
ately preceding the election. These alleged threats, along
with Respondent's unsuccessful attempt to get INS to ap-
pear at the Employer's plant on the day of the election,
comprised the basis for both the unfair labor practice as
well as Objection 3.
While Junez, Sandoval, and Romiro all testified without
contradiction, their testimony set forth below contains cer-
tain inconsistencies and variances. I do not consider these
inconsistencies or variances as sufficiently substantial to dis-
credit their testimony. Based on my observation, all three
impressed me as essentially credible witnesses who would
not fabricate their testimony to further any self-interest.
Further, each testified through the use of an interpreter,
and I am persuaded that some of their difficulties during
the hearing was directly attributable to their failure to be
able to communicate with me and counsel without the use
of a third person. Furthermore, these inconsistencies or
variances are essentially of a minor nature and do not, as
urged by Respondent, render their respective testimony ei-
ther improbable or incredible.
Junez testified that in the 8 to 10-day period immediately
preceding the election she observed, on several occasions,
individuals engaged in handbilling at the entrance to the
plant as she drove to work in her car. On one such occasion
within this period, one of the two or three men standing
near the entrance approached her and handed her some
literature in Spanish."' Junez described this individual as a
stocky man of Mexican ancestry" wearing a blue jacket
with "a thing" of about 3 inches on the left shoulder or
chest area.' When shown a picture of the Teamsters jacket
with logo over the left chest area, the witness was unable to
identify the jacket as the type worn by the individual speak-
ing to her.
On direct examination, Junez testified that the man wear-
ing the jacket stated, "Vote for the Union cause, if you
don't vote, we're going to throw you together with those
who have no papers." When pressed by the General Coun-
sel, Junez further testified, "I only remember that he said
that we have to vote because if we don't vote, then those
who do not have papers would be thrown out. He also told
us that if we voted for the Union, we would have very good
benefits." Under questioning by counsel for the Employer,
Junez was asked whether the man made any statement con-
cerning the immigration department. In response to this
" Junez described this material as urging her to vote for the Union in
order to obtain better benefits.
u1 Junez was shown small photographs on the business cards of 17 business
agents employed by Respondent who were engaged in the campaign at the
Employer's facilities Junez was unable from the small photographs to iden-
tify the individual who spoke to her on this occasion. Pictures of Shorey and
Mendoza were not shown to Junez.
1 The General Counsel introduced into evidence a brochure advertising
variousjackets and windbreakers bearing the Teamsters name or logo. These
jackets, while available for purchase to the general public. are frequently
worn by Teamsters business agents and officials.
760
CANNERY. WARIEHOUSEME[N. FOOD PROC('ESSORS, LOCAL. 748
question. Junez further testified that the individual said if
the employees did not vote for the Utnion. the,, the tlnion.
would talk to immigration so that all the people who did
not have papers would he throw n out. Juncz was not ques-
tioned by counsel for Respondent on this conversation.
During the several weeks immediately preceding the elec-
tion. Trinidad Sandoval and Dominga Romiro rode to
work with another second-shift employee. known at that
time to Sandoval and Romiro only as Julia or Juli."
Sandoval testified that she had observed two men hand-
billing at the plant on four or five occasions during the 2-
week period immediately preceding the election.i' Except
for two or three occasions when the temperature was ex-
tremely high. the men engaged in handbilling wore blue
jackets bearing the Teamsters name. Although Sandoval
testified that the handbillers talked to Julia on four or five
separate occasions, she could only recall two such conversa-
tions.
The first occurred about a week and a half prior to the
election when one of the men handbilling came up to the
driver's side of the car and asked Julia how things were
going. When Julia answered that they were not going too
well, the man stated that that was too bad because if things
went bad and they were to lose, they would call immigra-
tion.
According to Sandoval. the second conversation at the
entrance to the plant took place only 3 or 4 days prior to
the election. The same man again approached the car from
the driver's side and asked if the employees were going to
vote for the Union. When both Julia and Sandoval an-
swered that they would, the man responded that he was
very happy and that he thought the Union would win the
election because Julia had helped him a lot. Julia and the
man continued talking. but the witness could not recall
what else was said.
Romiro. who rode to work in Julia Duncan's car with
Sandoval, testified that she observed handbilling on several
occasions but could recall only two conversations between
the occupants in the car and any of the men wearing jackets
which bore the Teamsters logo or names. The first occurred
about a week prior to the election when the man handbill-
ing asked Julia how things were going. When Julia re-
sponded that she did not know, the man said that it would
be better if the employees voted fior the Union otherwise
immigration would come.
The second conversation occurred 3 or 4 days before the
election. Again. the man who had been handbilling asked
how they were doing. and this time Julia answered that
they were doing better. At this point, the man stated "that
is good because otherwise immigration would have to come
and if we win, everything will be all right."
" This Julia or Jul was identified b seerall emploee uilne-es s a: ill
blond woman o Spanish descent. approximatel] 40 ears old. who was em-
plosed in the processing department on the second hill as of August and
September (counsel ot the tmploser represented th.at. through a thorough
check f its records, it was able to determine that the person dentitied s
Julia was in fact Julia Duncan. a fiormer empllsee of the Elnphllcr. t he
Ftmplo'er's cunsel further represented hat the hadl been Informed that
D)uncan ma, have moied t Spalin and that, in as .ent,. Rcspldecnt li
t
been unable t, locate her prior to the hearing
" In additlion to receiving campaign literature, the man handhilihng gae
emplo),ees "something like little labels hat said I eamrnlers" No, additsinl
eiidence was offered with regard t these libhels
It is unclear from a careful comparison of the respective
testimony of Sandoval and Romiro whether they were lesti-
t\'ing to the same two conversations with one of the hand-
billers. Sandoval testified that a handbiller spoke to Julia on
four or five separate occasions within a relatively short pe-
ri;od of time. Romiro was not specifically asked whether
there were more than the two conversations which she
could recall the content As noted above. I do not find that
this apparent confusion between the testimony of poorly
edulcated and unsophisticated employees detracts from the
thrust of their testimony. Their testimon clearl establishes
that, on at least one occasion prior to the election they
were threatened hs one or more indis iduals engaged in
handbilling with a raid and/or deportation by INS. ur-
thermore, the fact that such threats were made at the en-
trance to the plant hi individuals engaged in handbilling is
corroborated full' b the credible testimony of Junlle.
(. Eidnc'ct 1 z/i Regard lo O/jrctr(mt 4
In addition to Junez. Sandoval and Romiro five employ-
ees who also worked in the same processing department on
the second shift testified without contradiction that within
the week and a half immediately preceding the election
there were widespread discussions among Spanish-speaking
employees concerning threats of a raid on the plant by
INS.'"
For example. Julia Duncan, on either the day before or
the day of the election itself; stated to approximately 13 to
20 employees that it was best for the people who were
aliens not to vote because, if the Union won everything
would he okay. but if J. R. Wood won, immigration would
come. )uncan also informed the employees at this time
that aliens were not permitted to vote. s"
That I)uncan's remarks concerning immigration were
not limited to group meetings. however. is evidenced by the
testimony of Sandoval. Sandoval. after describing her sec-
ond conversation with the individual engaged in handbill-
ing (see above). testified that after the man left, but while
they were still in Duncan's car. Duncan stated that it was
very important that the employees should vote for the
Union because she had been informed by the Union when
she had previously talked to them on the telephone that if
the Union did not win. they would send immigration to the
Employer's plant.
Perhaps the best example of the employees' concern re-
garding this question can be found in the testimony of
Theodora Tristan. Tristan testified that, on the night before
the election. she engaged in a conversation with Dominga
Romiro. wherein she asked Romiro whom she was going to
vote for and it' she was scared to otle because Julia had told
her that if the5 did not ,ote fr the I'nion. they were going
to call the border patrol on them. According to Tristan.
I)oming.a stated that one of the I'eamsters had told ulia to
tell them that i the, did not vote foir the U nion. the) would
call the border patrol.
Tristan further testified that she `*as told bh several other
I I hi processi g departnmenl t hlch conslsted II approxlmatels I lo 211
eniplohees. as nrcer identtied hb name It appears trom the record e-
dentce that these emnplosees. A ho ll engaged in airiou, processing finctitons.
worked in the slame general .Ireal and tk their breaks at the same lime
" See he testinls l i' I cnpe R c nl and Renalda :rms, a. blh of ,hom I
credit
761
I)E( ISIONS 01' NAII()NAI. ABOR R.AIOi)NS BOARD
employees on several other occasions that Julia had made
similar comments to them. ristan further testified that she
personally overheard, while in the ladies room. several un-
identified employees' comments to the effect that the had
better vote for the Union because. i they did not. the
Union was going to call the immigration department. j ?
The above-credited and uncontroverted testimony clearly
establishes that nearly all of' the 15 to 20 Spanish-speaking
second-shift employees. who worked and took their breaks
together. were subjected to I)uncan's repeating the threats
originally made by Respondent's agents that the Union
would somehow arrange for INS to raid the plant if' the
Union lost the election. Additionally, the employees within
this department further discussed those threats among
themselves.
D. Evidence With Regard to O)/jct ion 6
The Employer, in ObJection 6, contends that the Board
agent conducting the election encouraged. by his instruc-
tions, a voter to vote for the Union. The sole witness called
to testify regarding this objection was Carmen Junez. Junez
credibly testified that. when she went to vote at approxi-
mately 7:30 p.m. she observed three or four women seated
behind a table. When Junez gave her name to one of' the
women, she was handed a ballot by a "tall Anglo with red
hair" wearing "a thing" on his clothing." As the Board
agent gave Junez the ballot, he pointed to the left side, or
the yes box and said: "Yes, ok." He then pointed to the
right side of the ballot. or the no side and said: "No." Fi-
nally, the Board agent pointed again to the left side of the
ballot and repeated: "Yes ok." Junez then said. "Yes. ok"
and went into the booth to vote.
I'. I)lS,'t SSI()N
A. 7Th U'nflir Labhor Practice andl Oh/clionA .3 ilnd 4
Despite the lack of direct evidence identifying those indi-
viduals who, while handbilling at the Employer's premises.
engaged in certain alleged unlawful conversations with sev-
eral unit employees during the period immediately preced-
ing the election. I am persuaded by the weight of the cir-
cumstantial evidence that these individuals were paid
Teamster employees and/or officials. In reaching this con-
clusion I rely on several factors enumerated below. While
no one factor or element, when viewed separately. mnay be
of' such evidentiary consequence so as to compel such a
conclusion, taken together, their cumulative effect estab-
lishes by a preponderance of the evidence the true identity
of the transgressors as employees and/or officials of Re-
spondent.
Britt. Respondent's secretary-treasurer. testified that he
had overall responsibility for conducting the organizing
campaign at the Employer's facility and that the only indi-
viduals authorized to engage in any handbilling at the plant
For testimony o a similar nature regarding other discussions among
employees not directly involving Duncan. see the corroborative testimony of
Irene Salgado, Rosaria Solo, and Carmen Junez. whose esiimony I credit.
K1 While Junez could not describe the "thing" on this tall Anglo. it appears
certain she was describing the badge worn by the Board agent.
were its approximately 22 business genis. ' Further. Brill,
who was never present at the plant. testified that t his
knou ledge n one other than these aulhorized agents eser
engaged in such activities. Ihose. like Shorec and Men-
dozia. who did have direct knowledge as to whether non-
I eamsters business agents ever distributed or tr that mat-
ter ere ever given union literature to distribute dli not
testif's. Respondent offers no explanation of' how, in these
circumstances, anyone other than one o its authorized
agents could hav e gotten possession of its literature in order
to distribute it at the plant.
Sandoval. Romiro. and Junez all testified that, on several
occ"asions in the approximately 2-week period immediately
preceding the election, they observed individuals they could
not identilf as employcees of the FEmployer earing blue
jackets while handing out literature. Sandoval testified the
jackets worn bore a seal with the name "l eamsters" while
Romiro testified that the jackets bore only the 'leamsters
logo. Junez merely testified that the jackets had "some-
thing" on the left chest area.' °
Although these descriptions are less exact and specific
than the trier of fact would desire. their testimony is suffi-
cient to base a finding that the jackets worn by the individ-
uals engaged in handbilling were the type of jackets admit-
tedly worn by Respondent's business agents. As noted
above. this finding does not in and of itself establish the
identity of the handbillers in view of the fact that these
jackets are available for purchase by any member of the
public and can be obtained by simply placing an order with
the clothing firm that manufiactures them. However. I do
consider it another piece of the puzzle which. when fitted
together with the other pieces discussed herein, establishes
the identity of those handbilling as Respondent's agents.
lihe final factor I rely om in reaching this conclusion are
the ords used bx the individuals themlselves when thec
spoke to employees regarding Respondent which were al-
ways in terms of "wc" and "us." By their words and actiotis
they each indicated that they spoke or and on behalf of
Respondent. Sandoal Romiro. and Juinez could have
drawn no other reasonable interpretation. Further. Respon-
dent called none of the many witnesses available to it who
had been present at the Employer's tfacility during this
length of' time to contradict this testimony.
Apart from disputing the identity olf the individuals who
were engaged in handbilling at the mnploser's facilitR. Ke-
spondent does not contend that its business agents engaged
in organizing at the Employer's facility u:ere not agents o
Respondent within the meaning of Section 2(13) olf the Act.
I:sen absent its admission of their agency status, the record
amply supports the conclusion that these individuals en-
gaged in handbilling were acting in their capacities its union
agents or oflicials.
Although Britt testified that he never authorized people
engaged in the organizing of and campaigning at the Em-
ployer's premises to make any statements concerning a raid
at the Employer's plant. Respondent is nonetheless charge-
able with the remarks that they made while acting as Re-
'i For the sake of clarits, I include Shores and Mendoza in this rather
overly broad designalion.
20 As noted upira. none of the three was able Io posilisely idenli) the
ackels '. hen shown a piclure of a teamsters windbreaker Irom a brolhure.
762
CANNERY, WARLIIOUSL E:MIN. F(X)D PRO()([SSORS, I.OC'AI. 748
spondent's agents. As the Board stated in Iniernational
Rrotherhood of' Teanmsters, General Drivers, ('haujjeurs and
Helpers Local L nion No. 880 (Lee [ [,v Mioor Freight. Inc.
229 NI.RB 832. 832 833 (1977):
Rather, responsibility attaches if. applying the 'ordi-
nary law of agency.' it is made to appear the union
agent was acting in his capacity as such. .ocaIl '60.
International Brotherhood qf Electrical Wfiorkers. 4. F. L.
(Roane Anlderson Compan), 82 NLRB 696, 712 1949).
And, as the Board has indicated in International Long-
shorenen and W'arehousemen'v t nion, C. . .. ocal t6,
et al (Sunset Line and Twle (mpant1'):.
A principal may be responsible for the act of his
agent within the scope of the agent's general author-
ity., or the "scope of his employment" if the agent is
a servant, even though the principal has not specifi-
cally forbidden the act in question. It is enough if
the principal actually empowered the agent to repre-
sent him in the general area within which the agent
acted. [179 NLRB 1487. 1509 (1948).]
Accordingly, I find that Respondent's business agents
and/or officials were acting within the scope of their au-
thority while engaged in conversations with the Employer's
employees, and that these remarks are, therefore, attribut-
able to Respondent."
Three credible witnesses testified that they were threat-
ened with deportation by union representatives who were
engaged in handbilling. Such threats are chargeable to Re-
spondent. Accordingly. I find that Respondent Union by
such threats, regardless of whether Sandoval, Romiro, or
Junez are subject to deportation, violated Section 8(b)( I)(A)
of the Act. Professionail Research, Inc. dh/la Westside Hvs-
pital, 218 NLRB 96 (1975).
The Employer in support of its Objections 3 and 4 not
only relies on the above allegations involving direct threats
to employees by paid agents of Respondent. but also con-
tends that similar threats made by Julia Duncan and re-
ported by others created a general atmosphere of fear and
coercion among the voters which interfered with their ex-
pression of free choice.
As set forth in detail above, eight employee witnesses
credibly testified without contradiction that, during the ap-
proximately 2-week period immediately preceding and in-
cluding the day of the election itself, there was a nearly
constant stream of discussion concerning the possibility of a
raid by INS among the approximately 15 to 20 second-shift
employees who took their breaks at the same time and
place. While not very much discussion involved the ubiqui-
tous Julia Duncan, in the overwhelming majority of such
discussions. Duncan, in essence, informed her fellow em-
ployees that, unless the Union was selected, the Union
21 Both he General (Counsel and the Employer contend that Britt's unsuc-
cessful election day attempt to get the INS to appear at the plant was part
and parcel of its overall scheme, put into action and carried out by its busi-
ness agents. to unlawfully coerce employees Such an argument has certain
appeal, especially in light of Britt's experience In Board elections and hi,
failure to instruct union representatives at the preelection conference to raise
the issue. tloweser. in view of both the above-stated findings and conclusions
with regard to the threats to employees by Respondent's agents, and the fact
that no employee was apparently aware of Britt's unsuccessful attempt to
elicit the aid of INS, I need not reach this issue.
would contact INS who would in turn make a raid on the
Employer's plant.
The mployer contends that Respondent is liable for the
statements made by Duncan during this period. Respon-
dent. on the other hand, denies responsibilit% for l)uncan's
conduct on the grounds that there is insufficient eidence
that Duncan was acting as Respondent's agent. In this re-
gard. no evidence was presented that l)uncan was either a
paid employee of Respondent or that she was ever ftrmall'
or expressly appointed an agent of Respondent. Likewise.
there is no evidence that Duncan ever acted as a spokes-
person for the employees in dealings or discussions with the
Employer, or that Duncan served on any in-plant organiz-
ing committee or in any way other than her discussions
with her fellow employees chronicled above served as a
"resident agent" for Respondent. While employee Sandoval
did testify that in one conversation at Duncan's car the
handbiller stated that he thought the Union would win be-
cause Duncan had "helped them a lot." I do not view this
statement alone as establishing an agency relationship be-
tween Duncan and Respondent.
This finding is not, however, dispositive of the issue of
whether Respondent is nonetheless chargeable with [)un-
can's conduct. Sandoval and Romiro each testified that the
handbillers made threats of deportation to them in the pres-
ence of Duncan. Respondent's business agents' threats con-
cern matters of great importance to the employees and it is.
therefore, reasonable to infer that these statements would
be rapidly and widely disseminated.:2 Such was exactly
what took place here among the 15 to 20 employees work-
ing the second shift who took their breaks with Duncan.
Accordingly, I find that in these circumstances Duncan's
statements to employees with regard to a raid or possible
deportation are attributable to Respondent.?
The Board in 'Wes.side tHo.spirtl, supra, set aside an elec-
tion on the basis of a threat made b a staff representative
of the union to the spokesman for a group of Spanish-
speaking employees that the union would have him de-
ported unless he sided with the union and when the spokes-
man related the threat to other employees.
In overruling the Administratise Law Judge's finding
that the union's misconduct there did not warrant setting
the election aside. the Board reasoned at 96 97:
The question of whether there has been unwarranted
interference with free expression of choice does not
turn on election results. or the probable election re-
sults. Moreover. the impact of' threat is not necessarily
limited to Sanchez on1N. since experience has shown, as
demonstrated herein. that statements made during an
election campaign are the subject of discussion. repeti-
tion,. and dissemination among the electorate. Further-
more, there is no legal basis ftr concluding that Re-
spondent's conduct lost its coercive tendency merely
because of an absence of direct evidence showing that
some employees are illegal aliens, or that those em-
plo ees aware of that conduct were not in fact coerced.
2. See Intng 4r, (hut ( Ptt i.pam, Inc X, t. R B, 350 F 2d 176, 179 I2d
(r. 1965): J (' Pennei C, Inct v \ L R B. 384 F.2d 479. 485 (10th Cir
19671.
21 See %: L.R B . LU'non Nacunmal e 7alhajadoes. 540 F.2d I. fn. 7 (Ist
Cir 1976): cf. Frestone Steel Produi s Cornmpan,. a Dlivwl1n o Fireslone 7Tire
and Ruhher (nmpan, 235 NI. RB 54. 550 i /.i97
763
D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
The absence of such evidence hardly indicates that
such conduct had no tendency to affect their actions at
the polls.
. . . Apart from whether knowledge of the threat by
Sanchez only would constitute unwarranted election
interference, five or eight other Spanish-speaking em-
ployees were aware of it and of the message that harsh
threat was meant to convey: unless Spanish-speaking
employees supported Respondent, they not only risked
the loss of their spokesman, but they also could have
been marked for similar reprisals with which they may
or may not have been able to cope. This message. we
conclude, clearly was coercive and did have a tendency
to restrain the exercise of free choice in the election.
In the case at hand, threats of a raid were made directly
by Respondent's business agents to three Spanish-speaking
employees, and these threats were subsequently repeated to
and discussed by an entire department of Spanish-speaking
employees on several occasions immediately preceding the
election. 4
Respondent, in its defense, relies on two recent Board
cases. Mike Yurosek & Sons, 225 NLRB 148 (1976), and
Information Magnetics Corporation, 227 NLRB 1493 (1977),
decided subsequent to the Board's Decision in Westside
Hospital, supra. Both cases are factually distinguishable
from Westside Hospital, and their holdings, when applied to
the instant facts, support the conclusion that Respondent's
conduct herein had a tendency to affect or interfere with
the employees' exercise of free choice.
In Mike Yurosek, supra, the Board affirmed the regional
director's overruling of an employer's objection to an elec-
tion which involved threats by members of the union's in-
plant organizing committee that immigration would raid
the plant if the union lost the election. In so holding. the
Board found that there was no evidence that officials of the
union made any similar threats or that it in any way led
employees to believe that it ratified or acquiesced in any
such threatening statements. In reaching its conclusion that
the conduct complained of was not so aggravative in char-
acter so as to destroy the atmosphere for the expression of'
employees free choice, the Board noted that in the recent
past immigration authorities had been at the plant checking
on Mexican aliens, conflicting rumors were afloat that im-
migration would be called in no matter what the election
results, and there was testimony that employees who as-
sisted in the organizing campaign made substantial efforts
to disabuse employees of the idea that the union would call
immigration if it lost the election. The Ninth Circuit Court
of Appeals, in enforcing a Board's Order finding that the
employer was in violation of Section 8(a)(5) in a related
unfair labor practice case based on the Board's certification
of' the election, held at 597 F.2d 661, 663 (1979):
Here there was some evidence that the union heard the
rumor and clarified its position on the issue .... While
there were statements made by some of the employees
21 In Wesiside Hospial, supra, about 9 of the approximately 117 eligible
voters. or approximately 8 percent of the eligible voters. werc aware ,i the
threats. In the instant case approximately 20 of the 576 eligible voters. or
approximately 4 percent of the eligible voters, were aware ,of the threats. In
either case, their votes "would not he decisive to aller the election results."
which if' attributable to the union would create an at-
mosphere sufficient to chill the freedom of their choice.
there was insufficient evidence in this case to link those
statements directly to the union or its agents.
Clearly, the factors relied on by the Board and the court
in overruling the objections in Yurosek, supra. are not pre-
sent in the instant matter. Here there is ample, direct evi-
dence that agents of Respondent made threats, as alleged.
to employees. Additionally, there is no evidence that INS
had ever had a presence at the plant, that there was ever
any confusion among the employees as to who made the
threats. or that any official or individual active on behalf of
Respondent ever attempted to disabuse employees of the
idea that the Union would call INS if the Union lost the
election.
In InIbrmation Magnetics ('orporporation, supra, the second
Board case Respondent relies on, the union filed objections
to the election alleging that the employer circulated state-
ments that INS would be called in to deport illegal aliens
who did not vote "right." In overruling this objection, the
Board found that the source of the alleged threats was not
the employer, but was rather unidentified employee propo-
nents of the objecting party, the union.
Respondent herein can gain no solace by, its reliance on
this case as precedent.
Therefore, I find that Respondent, by its conduct set
forth above, interfered with the exercise of free choice in the
election. Accordingly. I recommend that Objections 3 and 4
be sustained.
B. Objection 6
The Employer, in Objection 6. contends that the actions
of the Board agent convinced employee Junez that he was
requesting that she vote in favor of the Union and that the
election should be set aside to protect the Board's high stan-
dards regarding the integrity and neutrality of the election
process. Contrary to the Employer's contention, I do not
find that the Board agent's conduct reasonably tended to
foster the impression of impartiality.
The problem with Junez at the polls obviously arose due
to the Board agent's inability to converse with Junez in
Spanish. Apparently. in an effort to explain the voting pro-
cedures, the Board agent merely pointed to the left side of
the ballot, said, "Yes." and then pointed to the right side of
the ballot and said, "No." The conduct complained of was
the further action of the Board agent in again pointing to
the left side of the ballot and saying, "Yes."
I do not find that the Board agent's second pointing to
the left side of the ballot and saying, "Yes," could have
reasonably given the impression that he favored the Union.
since his instructions clearly included a directive that the
right hand side of the ballot was for a negative vote. These
instructions were not prejudicial and were not of the kind
which would reasonabl\ lead to a loss of confidence in the
Board's impartiality. VNeport News Shipbuilding and Dry
DocA (onmpaiv., 239 NLRB 1028. fn. 18 (1978); Wabash
7lrmlormecr orporation, 205 NLRB 148 1973). Accord-
ingly. I recommend that Objection 6 be overruled.
764
CANNERY. WAREHOUSEMEN, OOD PROCESSORS. LOCAl. 748
v. 1IHE FFE I ()F IHI UNFAIR LABOR OR PRA(I(ES UPO()N
( ()MMER(TI
The activities of Respondent set forth in section 11I and
IV, above, occurring in connection with the operations of
the Employer described in section 1. above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
'I. TIlE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, it will be recom-
mended that it be required to cease and desist therefrom
and take certain affirmative action necessary to effectuate
the policies of the Act.
CONC(I.USIoNS OF LAW
I. The Charging Party-Employer is engaged in activities
affecting commerce within the meaning of the Act.
2. Respondent Union is a labor organization within the
meaning of the Act.
3. As found above, Respondent has violated Section
8(b)(1)(A) of the Act by threatening employees with depor-
tation if they did not support the Union.
4. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
5. It is recommended that Objection 6 be overruled and
that Objections 3 and 4 be sustained; that the election con-
ducted on September 19, 1978, in Case 32-RC-396 be set
aside, and that a second election be conducted.
Upon the foregoing findings of fact, conclusions of law.
and upon the entire record and pursuant to Section IO(c) of
the Act, I hereby issue the following recommended:
ORDER"
Cannery, Warehousemen, Food Processors, Drivers and
Helpers, Stanislaus and Merced Counties, Local 748. affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, its officers,
agents, and representatives, shall:
I. Cease and desist from:
(a) Restraining or coercing employees of J. R. Wood,
Inc., by threatening employees with deportation if they do
not support the Union.
(b) In any like or related manner restraining or coercing
the employees of said Employer in the exercise of the rights
guaranteed them in Section 7 of the Act, as amended.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
:5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Post at its business office, meeting halls, and other
places where notices to members are customarily posted
copies of the attached notice marked "Appendix." '" (opies
of said notice, on forms provided by the Regional Director
lor Region 32, after being duly signed by Respondent's rep-
resentatives, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it tfir 60 con-
secutive days thereafter, in conspicuous places. including all
places where notices to members and employees are cus-
tomarily posted. Reasonable steps shall be taken b Re-
spondent to insure that said notices are not altered. defaced.
or covered by any other material.
(b) Mail to the Regional Director for Region 32 signed
copies of said notices for posting by the atoresaid Em-
ployer, if willing, in places where notices to employees are
customarily posted. Copies of said notice provided by the
Regional Director for Region 32, after being duly signed by
the Respondent Union's official representatives, shall be
forthwith returned to the Regional Director.
3. Notify the Regional Director for Region 32. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
II Is FURTHER RECOMMENDED that the election held on
September 19, 1978, among J. R. Wood, Inc.'s employees.
in the bargaining unit described supra, be set aside by the
Board and that Case 32 RC-396 be severed and remanded
to the Regional Director for Region 32 for the purpose of
conducting a new election at such time as he deems that the
circumstances permit the fair choice of a bargaining repre-
sentative.
26 In the event that this Order is enforced b a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted hy Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Entforcing an Order of the Na-
tional Labor Relations Board.'
APPEN DIX
NoTI(EI To M1MBFRS
POSIrED BY ORDER OF 111t
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
give evidence, the National Labor Relations Board found
that we violated the National Labor Relations Act and or-
dered us to post this notice.
WE WILL NOT restrain or coerce employees of J. R.
Wood, Inc., by threatening them with deportation if
they do not support the Union.
WE WILt. NOT in any like or related manner restrain
or coerce the employees of said Employer in the exer-
cise of their rights guaranteed in Section 7 of the Act.
CANNERY, WAREtIOUSEMEN, Fool) PRO(ESSORS,
DRIVERS AND HELPERS, STANISLAUS ANt) MI.R(E)
COUNTIES, LCAL 748, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS. CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERI('A
7h65