Harvey Russell

National Labor Relations Board - Board Decisions

Feb 4, 1964

145 N.L.R.B. 1486 (N.L.R.B. 1964)

1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above-named employers and the undersigned Union, insofar as section III
and section XIV violate Section 8(e) of the National Labor Relations Act.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
UNION LOCAL No. 386, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELP-
ERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 830 Market
Street, San Francisco, California, Telephone No. Yukon 6-3500, Extension 3191,
if they have any question concerning this notice or compliance with its provisions.
APPENDIX F
NOTICE TO ALL EMPLOYEES OF FLODEN-BUTTON CO., SAN JOAQUIN VALLEY
TURKEY GROWERS ASSOCIATION, OAKDALE POULTRY COMPANY, AND E. S.
CHRISTOFFERSEN, DOING BUSINESS AS CHRISTOFFERSEN POULTRY, EGG & FEED
MARKET
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby give notice that:
WE WILL NOT on behalf of any of our employer-members enter into, actively
maintain, give effect to, or enforce any contract or agreement, express or implied,
with Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 386,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other labor organization, whereby said employer-members
cease or refrain or agree to cease or refrain from handling, using, selling, trans-
porting, or otherwise dealing in any of the products of any other employer or
from doing business with any other person.
WE WILL NOT on behalf of any of our employer-members maintain, give effect
to, or enforce the Live Poultry Agreement, effective September 1, 1962, through
August 31, 1965, entered into with Teamsters, Chauffeurs, Warehousemen and
Helpers Union Local No. 386, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, insofar as section III and section
XIV violate Section 8 (e) of the National Labor Relations Act.
VALLEY EMPLOYERS ASSOCIATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 830 Market
Street, San Francisco, California, Telephone No. Yukon 6-3500, Extension 3191,
if they have any question concerning this notice or compliance with its provisions.
Harvey Russell and California Association of Employers
General Teamsters, Packers, Food Processors, and Warehouse-
men's Local No. 912, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America and Cali-
fornia Association of Employers. Cases Nos. 20-CA-2614 and
20-CB-1063. February 4, 1964
DECISION AND ORDER
On October 4, 1963, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled proceeding, finding that the Re-
145 NLRB No. 142.
HARVEY RUSSELL 1487
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent Union filed excep-
tions to the Trial Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Leedom, Fanning,
and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision , the exceptions and brief , and the entire record
in these cases , and finds merit in the exceptions of Respondent Union.
Accordingly, the Board adopts the findings of the Trial Examiner
only to the extent consistent herewith.
The basic issue here is whether Respondent Union represented a
majority of Respondent Russell's employees at the time that Russell
and the Union entered into a collective -bargaining agreement which
contained a union -security clause.
The record shows that on February 20, 1963 , the date the col-
lective-bargaining agreement was executed , Russell employed four
drivers on a regular basis, Robert Rainey, Norman Rachella, John
Mello, and Wilbur Russell . In addition , Russell, also employed John
David Blackwood as a relief driver.' When the Union demanded that
Russell recognize it and execute a collective -bargaining agreement,
Russell stated that he did not believe that the Union represented a
majority of the employees and insisted that the union representative
show him signed authorization cards. The union representative there-
upon showed Russell authorization cards signed by Rainey , Mello,
and Blackwood . Russell denied the authenticity of the signatures,
however, and insisted upon checking personally with the employees.
A union representative thereupon drove Russell to the yard where
Rainey and Mello were working. Russell asked the employees if
they had signed the cards and the employees identified their signa-
tures. Russell then returned to the Union's offices and stated that
he was satisfied that the boys had signed the applications so he would
sign the agreement. Russell did not dispute the authenticity of Black-
wood's signature or Blackwood 's inclusion in the bargaining unit.
The Trial Examiner found , however, that as a relief driver, Black-
wood was a casual employee who could reasonably anticipate only
sporadic employment. Since in contested representation cases the
1 Blackwood began working as Russell ' s relief driver in November 1962, when the previ-
ous relief driver quit . From November until sometime subsequent to February 20, 1963,
Blackwood was the only relief driver employed by Russell.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board ordinarily excludes such employees from the appropriate unit,
the Trial Examiner concluded that Blackwood should have been ex-
cluded from the unit in the instant case and that the parties should
not have counted Blackwood's card. Thus, he found that without
Blackwood's card the Union did not represent a majority of the em-
ployees at the time the parties executed the collective-bargaining
agreement. Therefore, the Trial Examiner concluded that by enter-
ing into an agreement with a minority union the Employer violated
Section 8(a) (1), (2), and (3) of the Act and the Union violated
Section 8(b) (1) (A) and (2). We do not agree.
As we have seen, Russell personally checked the authorization cards
prior to executing the collective-bargaining agreement.' While
Russell initially disputed the Union's claim that it had cards from a
majority of the employees, apparently this matter was settled to his
satisfaction when he verified the genuineness of Rainey's and Mello's
signatures. It is true that Russell stated that Blackwood was not
working "steady" but he did not at that time challenge the Union's
majority on that ground. We have no reason to find in these cir-
cumstances that Russell in signing the contract did not thereby agree
to include Blackwood in the unit.'
In order to facilitate collective bargaining or the speedy disposition
of questions concerning representation, the Board has long accepted
the agreement of the parties concerning the contractual or appro-
priate unit. Parties are given broad latitude in the reaching of such
agreements and the Board will not disturb them unless it can be
shown that the exclusion or inclusion of certain employees contra-
venes the Act or established Board policy 4 Here it is clear that in
a manner appropriate to the circumstances of this case the parties
consented to Blackwood's inclusion in the unit. The inclusion of an
employee who is not regularly employed, but is employed with suffi-
cient frequency to have an interest in terms and conditions of employ-
ment within the unit, is not contrary to any provision of the Act or
established Board policy. We find that the parties properly included
Blackwood in the unit and were justified in counting his card in order
to determine whether the Union represented a majority of the em-
ployees. Therefore, the Union represented a majority of the em-
2 Cf International Ladies Garment Workers Union v. N L R.B., 366 U S. 731, 735, 739-
740, where the employer failed to cross-check the union's authorization cards against his
payroll and as a result accorded exclusive recognition to it union which did not represent
a majority of the employees.
3 Although the Union was picketing Russell at the time there is no evidence to indicate
that but for the picketing Russell would have questioned the propriety of including Black-
wood in the unit. The picketing did not deter Russell from disputing the authenticity of
Rainey's and Mello 's signatures , and there is no basis for assuming that Russell would not
have similarly disputed Bla'ckwood ' s inclusion in the unit if he did not view Blackwood
as an eligible employee.
4 Cf. Lake Huron Broadcasting Corporation, 130 NLRB 908 ; Norris-Thermador Corpora-
tion , 119 NLRB 1301.
HARVEY RUSSELL 1489
ployees in an appropriate unit when Respondent Russell and the
Respondent Union executed the collective-bargaining agreement. Ac-
cordingly, we find that Respondents did not violate the Act thereby.'
[The Board dismissed the complaint.]
5 In view of our disposition of the case for the reasons stated we find it unnecessary to
pass upon the other grounds for dismissal of the complaint urged by Respondent Union.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner Eugene
K. Kennedy in Monterey, California, on June 12 and 13, 1963. The complaint issued
by the General Counsel alleged that Russell, the Employer, violated Section 8(a)
(1), (2), and (3) and that the Union violated Section 8(b)(1)(A) and (2) of the
Act. A specific question involved is whether the above-entitled Union represented
a majority of the employees in an appropriate unit when it executed a contract with
Harvey Russell, the Employer, on February 20, 1963. A subsidiary issue involves
the contention of Respondent Union that because the charge was filed by an agent
of the Employer against both the Employer and the Union, and no answer to the
complaint based on such charges was filed on behalf of the charged Employer, this
series of events constitutes an abuse of the Board's processes and remedial relief
should be withheld in such circumstances.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE JURISDICTION OF THE BOARD
Harvey Russell, an individual, is and has been at all times material an individual
proprietor engaged in a business of transporting and hauling fluid milk, with his
principal place of business located at King City, California. His annual business
operations include services to three enterprises, each of which annually produce and
ship goods and materials valued in excess of $50,000 directly outside the State of
California, and each of which annually receives goods and materials valued in excess
of $50,000 from States other than California.
Russell is an employer engaged in commerce and in a business affecting commerce
within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
General Teamsters, Packers,.Food Processors, and Warehousemen's Local No. 912,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background events
On January 18, 1963, the Union filed a representation petition seeking to repre-
sent "all truck drivers" of Russell. The petition recited that there were five employees
in the unit.
On January 21, 1963, the California Association of Employers, an organization
which includes Russell in its membership, filed a petition with the National Labor
Relations Board which recited that the Union was seeking representation of Russell's
employees, which it indicated as being four, and described the unit as "truck drivers
and garage men." The record reflects that one of the drivers of Russell also does
mechanical work in connection with Russell's trucks.
A consent-election agreement was executed by the Union and Russell on Janu-
ary 29, 1963, describing the composition of the unit of employees eligible to v,te
as "All truck drivers and garage men employed by the employer at his King City
operation " 1
'King City is in Monterey County. At the hearing, the Union contended they were
seeking to represent only employees whose equipment was based in Santa Cruz County.
734-070-64-vol . 146-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 31, 1963, the Union addressed a letter to the National Labor Relations
Board disclaiming any representation rights with respect to the employees of Russell.
It also requested that the petition filed by the Union and the California Association
of Employers be dismissed, which request was granted.
On February 15, 1963, the Union addressed a communication to Mr. Russell which,
among other things, recited that it was not seeking to represent his employees and
that it was not the Union's purpose in carrying on any advertising campaign to effect
a contract with Russell.
On February 20, 1963, the Union stationed a picket at Meadow Gold Dairy which
was one of the points of delivery for Russell's trucks. The milk remained unloaded
in excess of 8 hours which was about the maximum period it could remain unloaded
without spoilage.2
Russell, during the time he was attempting to have the milk unloaded, was informed
by officials of Meadow Gold Dairy that in order to continue his business relationship
with them he would either have to sign the agreement with the Union, or that Meadow
Gold Dairy would lease Russell's trucks for a period of 30 days. During this same
day, Russell spoke with Conrad Hansen, secretary-treasurer of the Union, and was
informed by Hansen that the milk would not be unloaded until Russell signed a union
contract. The picketing of the trucks commenced at approximately 6 in the morning
and about 5 p.m. in the afternoon, Russell signed a contract which the Union presented
to him. He originally signed it with a notation "under duress." The Union refused
to accept his notation, and Russell signed the contract without an indication that he
was signing)under duress.
During the course of the day, prior to the execution of the contract, Russell was
in contact with the California Association of Employers' representatives, including
legal counsel, who were considering steps that might be taken to have the picket
removed and the milk unloaded. However, he executed the contract against the
advice of the California Association of Employers' representatives and outside of their
presence.
A few days after the contract was executed and the milk was unloaded, Russell
again sought the counsel of a representative for the California Association of Em-
ployers. He was advised that the contract was unlawful as the Union did not repre-
sent a majority of the employees, and he was also informed that the California
Association of Employers intended to file an unfair labor practice charge seeking a
resolution of the legality of the contract, and that, in effect, if Russell did not agree
with this action, consideration would be given to expelling him from the Association
Russell authorized the California Association of Employers to file unfair labor prac-
tice charges against both himself and the Union, which it did on March 1, 1963
Neither Russell nor the California Association of Employers filed an answer to the
complaint charging Russell had committed unfair labor practices by the execution
of the agreement of February 20, 1963.
B. Evidence relating to the composition of the unit
In the representation petition filed by the Union on• January 18, 1963, "all truck
drivers" of Russell were designated as the appropriate unit.
The agreement executed by Russell and the Union on February 20, 1963, had a
general application to all Russell's truckdrivers.
On January 29, 1963, the Union and Russell executed an agreement looking to-
ward an election held by the National Labor Relations Board in which the appropri-
ate unit was described as "All truck drivers and garage men employed by the em-
ployer at his King City operation."
As of February 20, 1963, Russell's employees included Robert Rainey, Norman
Rachella, John Mello, and Wilbur Russell. The record contains application blanks
and authorization for representation by the Union executed by John Mello and
Robert Rainey who indicated their employer was Harvey Russell, on these blanks.
There is also in evidence as an exhibit an application blank and authorization for
representation executed by John David Blackwood.
The majority representation of the Union hinges on the eligibility of employee
Blackwood to be included in the unit. Blackwood had been regularly employed
as a driver for Russell in 1961. Commencing in November 1962, he was employed
to relieve drivers on the following dates. In November 1962, he was employed
on November 22. In December 1962, he was employed on December 1, 2, 8, 9,
2 There were three trucks of milk which the Meadow Gold Dairy refused to unload
The total contents of the three trucks comprised about 7,500 gallons, having an approxi-
mate value of $3,250. Meadow Gold was a substantial customer of Russell
HARVEY RUSSELL 1491
15, 16, 22, 23, and 25. In 1963 , he was employed on January 6 , February 6, 7,
and 24, and has not been employed since that date. His employment on the above
dates was in large part occasioned by an emergency situation confronting Harvey
Russell , in that he had his chauffeur 's license suspended for a period of 30 days
in November and also by the fact that during this same general period, one of his
regular employees had resigned.
Blackwood was attending night school and had a job at Wemmers Ready Mix.
That Blackwood considered Wemmers his primary employer is suggested by the
union application card which is included in the record as an exhibit , which reflects
that he originally indicated Wemmers Ready Mix as his employer , and the exhibit
reveals a line drawn through "Wemmers Ready Mix" and "Harvey Russell" written
below. This suggests that it was an afterthought of Blackwood that he should
consider Russell his employer.
At the time of the hearing , in June 1963 , Blackwood had not been employed
since February , and Russell had no intention of employing him on any regular basis
as a part-time employee.
On the basis of this record it is found that Blackwood had no reasonable ex-
pectancy of anything but possible sporadic employment in the event that Russell
was faced with an emergency situation Casual employees who perform work at
only intermittent periods have been excluded by the Board from bargaining units.
G. C. Murphy Company, 128 NLRB 908. Central Mutual Telephone Company,
Inc., 116 NLRB 1663, 1667 . Blackwood is consequently excluded from the unit
here under consideration.
Excluding Blackwood from the unit would leave the Union with authorization
for two of the employees out of four employed by Russell on February 20, 1963.
Consequently it follows that the collective -bargaining agreement was executed when
the Union did not represent a majority of Russell's employees.
The representation petition and the consent -election agreement signed by the
Union and the contract between it and Russell executed on February 20 clearly
envisage that the Union sought to represent all of Russell 's truckdrivers wherever
their trucks happened to be based . At the hearing there was some evidence, as
well as a contention on behalf of the Union , that the unit should be coextensive
with the territorial jurisdiction of Respondent Local No. 912 The evidence re-
flects great flexibility from the Union 's standpoint with respect to working arrange-
ments with neighboring locals of the same International , which would pernut,
based on past practice , the Local here to represent all of Russell 's employees.
However, even aside from this , it is well established that the territorial jurisdiction
of the Union is not operative in restricting a determination by the Board as to the
appropriateness of a collective -bargaining unit. See, for example , Associated
Grocers, Incorporated , 142 NLRB 576.
Here there are compelling reasons to find Russell 's employees are a single bar-
gaining unit , including the fact that the employees use the equipment interchange-
ably, perform the same duties with the same skills, and operate in the same general
territorial area. It would appear incongruous from the employees ' standpoint to
fragment the unit based upon the happenstance as to where a particular truck is
parked during the time when it is not in use Therefore , on this record it is found
that there is no basis for segregating the employees of Russell for the purposes of
a bargaining unit coextensive with the territorial jurisdiction of the Respondent Local
C. The issue of the identity of the Charging Party
Respondent Union contends that inasmuch as the Employer , Russell , authorized
his agent, the California Association of Employers , to file unfair labor practice
charges against both the Union and himself, it would be an abuse , of the Board's
processes to entertain a proceeding originating under such circumstances.
First , with respect to the charge against the Union, there is nothing that has
been adduced in the record that suggests any impropriety with respect to the pro-
cedure utilized in this respect . Secondly, with respect to the charge filed by the
California Association of Employers against Russell , which he authorized, the
record reflects that the charge was filed not only on behalf of Russell but also on
behalf of the other members of the Association and Russell 's employees. Since
the gravamen of the unfair labor practice charges herein considered involves a
contract to which Russell is a party , Russell in line with established procedure
would be named as a party to this proceeding in any event . This fact alone is
regarded as sufficient to rebut any contention that the charge filed in this case
should be regarded as an abuse of the Board 's processes.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , the National Labor Relations Act and the Board 's Rules and Regula-
tions permit any party or person to initiate a charge . The charge initiated by the
California Association of Employers , although initiated on behalf of Russell, also
was filed because the Association regarded the contract , to which Russell was a
party, as affecting not only its own employer members, but Russell 's employees.
In summary , it is found that the facts established by this record warrant an
order requiring the Employer and the Union to cease maintaining a contract that
was entered into in violation of the Act .3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , have a close,
intimate , and substantial relation 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.
CONCLUSIONS OF LAW
1. Respondent Russell is an employer engaged in commerce or in an activity
affecting commerce within the meaning of the Act.
2. Respondent Union is a labor organization within the meaning of the Act.
3. Respondent Russell , by executing the contract set forth above, on February 20,
1963 , violated Section 8(a)(1), (2 ), and (3 ) of the Act, and the Union, by its
execution of the same contract , violated Section 8(b) (1) (A ) and 2 ) of the Act .4
[Recommended order omitted from publication.]
3In the case at hand, Respondent Russell, because of severe economic pressure , executed
an agreement with Respondent Union. That he did so with great reluctance is fully sup-
ported by the evidence In the record . The facts in this case are readily distinguishable
from the situation presented in Lawrence Frederick et al., d /b/a Hollywood Ranch Market,
93 NLRB 1147 , where the employer and the union entered into an arrangement solely for
the purposes of having the Board assist one of the unions In its organizing efforts. In
that situation the Board held that It would be an abuse of its processes to assist a union
In its organizing campaign because it and the employer had, in effect , "rigged" the facts
upon which a charge was filed. Here, Russell invokes the processes of the Board to avoid
the effects of a contract entered into under duress. While economic pressure as a form
of duress is permitted to effect a binding agreement in the area of industrial relations, the
National Labor Relations Act does not countenance agreements made under duress by a
union when it is not the majority representative of the employees covered by such contract.
4It is well established that a collective -bargaining agreement entered Into by an em-
ployer and a labor organization which does not represent a majority of employees In an
appropriate bargaining unit provides illegal assistance to the labor organization and re-
strains and coerces employees , thereby violating Section 8 ( a) (1) and ( 2) and Section
8(b) (1) (A ) of the Act . The Crossett Company, 140 NLRB 667.
Inasmuch as the contract on February 20, 1963, contained a union-security clause, and
the Union did not represent a majority at the time it was executed , and because Section
8(a) (3) by its terms requires a union majority status to effect a valid union-security
clause, It follows that the execution of this contract was a violation of Section 8(a)(3)
on the part of Russell , and of 8 ( b) (2) on the part of the Union . Robbie Shoe Corp.,
113 NLRB 314.
International Union of Operating Engineers , Local 18, AFL-CIO
[Frazier Davis Construction Co.] and Melvin M. Jackfert.
Case No. 8-CB-638. February 4, 1964
DECISION AND ORDER
On October 7, 1963, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Counsel
145 NLRB No. 146.