N.L.R.B. v. Mike Yurosek & Sons, Inc., 77-1775

• Decision Date: 22 January 1979
• Docket Number: No. 77-1775,77-1775
• Citation: 597 F.2d 661
• Parties: 100 L.R.R.M. (BNA) 2721, 85 Lab.Cas. P 11,171 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIKE YUROSEK & SONS, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 661

597 F.2d 661

100 L.R.R.M. (BNA) 2721, 85 Lab.Cas. P 11,171

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIKE YUROSEK & SONS, INC., Respondent.

No. 77-1775.

United States Court of Appeals, Ninth Circuit.

Jan. 22, 1979.

Rehearing Denied May 3, 1979.

Richard Brooks (argued), Washington, D. C., for petitioner.

Michael B. Roger (argued) of Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for Butchers Union Local 193.

Morgan, Lewis & Bockius, Washington, D.C. for respondent.

Before MERRILL and KENNEDY, Circuit Judges, and BARTELS, ^* District Judge.

KENNEDY, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order holding a company in violation of sections 8(a)(1) & (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) & (5), for refusing to bargain with the union certified by the Board after the supervised election. The company, Mike Yurosek & Sons, Inc., refused to bargain because of alleged irregularities in the representation election. The Board held an evidentiary hearing to evaluate two objections made by the company and found that neither had merit. There is substantial evidence to support the Board's findings and we rule that the Board's order must be enforced.

The company operates in the central valley of California where it farms, processes, packs, and sells vegetables. The election in question was held to determine if the employees of the company's Lamont packing shed desired representation by the union, Butcher's Union Local 193 of the Amalgamated Cutters and Butcher Workmen of North America, AFL-CIO. The vote was 132 in favor of the union and 97 against. ¹

At its hearing, the Board considered company charges that two separate incidents during the pre-election campaign so tainted the election that the employees were denied free choice. The first and most substantial charge was that misrepresentations were made to the effect that if the employees did not vote in favor of the union, the Immigration and Naturalization Service would be informed of the names of any illegal aliens who were members of the employees' bargaining unit. There is little doubt that the subject of possible Immigration and Naturalization Service investigation was discussed by the employees during the election campaign, one of the occasions being in a group of 25 or 30 employees walking together to work. Beyond this, however, the contents of this and other rumors are confused and the evidence is in conflict as to who was repeating them. There was at least some evidence of a conflicting rumor, to the effect that an Immigration and Naturalization Service investigation would be avoided by defeating the union.

While there were creditable witnesses who testified that pro-union employees warned that immigration inspectors would appear if there were a union loss, at least two union members contradicted that claim and a member of the union organizing committee told employees that the rumors were unfounded. Finally, there was testimony that at least one union officer denied that the union had any intent to expose illegal aliens.

The Board found that the union could not be charged with circulating the rumor. One factor in determining whether misrepresentations are likely to have had a significant effect on the outcome of an election is whether the statements in question were made or adopted by the union. If the statements are not properly attributed to the union, there generally is less likelihood that they affected the outcome. NLRB v. Aaron Brothers Corp.,...