Riser Foods

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 635 (N.L.R.B. 1992)

635
309 NLRB No. 96
RISER FOODS
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
2 This discussion is limited to the issue of whether Local 507 vio-
lated the Act as alleged. Consequently, the term ‘‘Respondent’’ re-
fers only to Local 507 unless otherwise noted. As to Riser, we agree
with the judge that the 8(a)(3) allegation against it is derivative in
nature and that its dismissal is required by the dismissal of the com-
plaint against Local 507.
3 All dates hereafter refer to 1988 unless otherwise noted.
4 The former Seaway employees reported to the Richmond Road
warehouse at various times between August and December. Pursuant
to the consolidation agreement, Local 407 continued to represent the
former Fisher drivers whom it had represented prior to the merger
while Local 507 continued to represent the Seaway drivers whom it
had represented at the Aurora Road facility. It was also agreed that
Local 507 would represent any new drivers who came into the bar-
gaining unit.
5 As the judge observed, Friedman, Local 507’s president, refused
to sign the consolidation agreement because it contained a provision
that required the dovetailing of the R & R employees’ seniority upon
their inclusion in the Richmond Road Riser bargaining units. Fried-
man insisted that he would not sign the agreement because of that
provision and consistently maintained his opposition to the dovetail-
ing of the R & R employees’ seniority throughout the period at
issue. There is no evidence that Friedman, or any other Local 507
Continued
Riser Foods, Inc. and Douglas F. Schreiber
International Brotherhood of Teamsters, AFL–
CIO,1 Local 507 and Douglas F. Schreiber.
Cases 8–CA–21686 and 8–CB–6465
November 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 16, 1992, Administrative Law Judge Rob-
ert G. Romano issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions
and briefs in support and the Respondents filed an-
swering briefs.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
The issue in this case is whether the Respondent
Union (Local 507) violated Section 8(b)(1)(A) and (2)
of the Act by unlawfully insisting that the Respondent
Employer (Riser) endtail the seniority of the 15 former
Rini-Rego Warehouse (R & R) drivers and warehouse-
men whose seniority Riser had earlier dovetailed.2 We
agree with the judge, for the reasons stated by him,
that Local 507 did not violate the Act as alleged and
that the complaint should be dismissed.
The alleged unlawful conduct arises from the con-
solidation of two warehouse operations in Bedford
Heights, Ohio, and the closure of a third. Fisher Foods,
Inc. conducted its warehouse operation from its Rich-
mond Road facility and American Seaway Foods, Inc.
conducted its warehouse operation from its facility on
Aurora Road. Local 507 represented the Fisher ware-
housemen at the Richmond Road facility and Team-
sters Local 407 represented a separate unit of Fisher
drivers at that facility. Local 507 separately rep-
resented the Seaway warehousemen and drivers in a
single unit at Aurora Road. R & R conducted its ware-
house operation from its Industrial Drive facility.
Teamsters Local 400 represented R & R’s eight drivers
and warehousemen in a single unit.
Pursuant to a consolidation agreement of June 8,
1988,3 Fisher and Seaway merged their warehouse op-
erations and thereafter conducted business operations
as Riser Foods from the Richmond Road facility. As
part of the consolidation agreement, the Local 507-rep-
resented former Seaway warehousemen were merged
into the Local 507-represented former Fisher ware-
housemen unit with dovetailed seniority and the Local
507-represented former Seaway drivers were merged
into the Local 407-represented former Fisher drivers
unit at Richmond Road also with dovetailed seniority.4
As a result of the consolidation, R & R closed its
warehouse operation. Pursuant to a closure agreement
negotiated between Local 400 and R & R (with a Riser
representative present), Riser was to hire the 15 R &
R bargaining unit employees (7 drivers and 8 ware-
housemen) at issue here as they were laid off by R &
R. Under the terms of the closure agreement, they
would retain their R & R seniority. Riser hired these
15 individuals between June 12 and July 24. Prior to
commencing work as Riser employees, the 15 former
R & R employees joined Local 507. As agreed to by
R & R, Riser dovetailed the R & R employees’ senior-
ity with that of the employees in the bargaining units
at Richmond Road. In November, however, Riser re-
versed itself and endtailed their seniority after Local
507 threatened a work slowdown if Riser refused to do
so. As a consequence, all 15 former R & R employees
lost their seniority and some of them lost job bids
which they had recently won based on their previously
dovetailed seniority.
The General Counsel alleged that Local 507 violated
the Act by reneging on its agreement to dovetail the
former R & R employees’ seniority or, in the alter-
native, by discriminatorily insisting that their seniority
be endtailed at a time when Local 507 owed a duty
of fair representation toward those employees. As to
the former theory, we agree with the judge that there
is no evidence that Local 507 ever agreed to dovetail
the seniority of the employees at issue with the Local
507-represented Riser employees at Richmond Road.5
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representative, ever retreated from the position that the seniority of
the 15 former R & R employees had to be endtailed to that of the
employees in the merged bargaining units.
6 See, e.g., Teamsters Local 229 (Associated Transport), 185
NLRB 631 (1970), and Teamsters Local 896 (Anheuser-Busch), 296
NLRB 1025 (1989).
7 Vaca v. Sipes, 386 U.S. 171, 190 (1967).
8 We also agree with the judge that even assuming that Riser was
bound by the Local 400-R & R closure agreement to dovetail the
seniority of the former R & R employees, Local 507 was not bound
by such an agreement and, in fact, was not involved in negotiating
it and never agreed to it.
9 As to the former Fisher and Seaway drivers, because Local 407
was the incumbent bargaining representative of the Fisher drivers at
Richmond Road, it could have insisted that the seniority of the
former Seaway drivers be endtailed when they transferred to the
Richmond Road facility. Local 407, however, opted to dovetail the
former Seaway drivers’ seniority with that of the former Fisher driv-
ers and Local 507 agreed to this arrangement.
Consequently, we also agree with him that Local 507
did not renege on such an agreement and that that the-
ory of the complaint is without merit. As explained
below, we also agree with the judge that Local 507 did
not violate its duty of fair representation by insisting
that Riser endtail the former R & R employees’ senior-
ity.
As the General Counsel points out in his exceptions
to the judge’s decision, a union may lawfully insist on
the endtailing of new bargaining unit employees’ se-
niority when it is based on unit rather than union con-
siderations.6 In the present case, the General Counsel
asserts that Local 507’s endtail demand was unlawful
because it was based solely on union considerations. In
support of its contention, the General Counsel argues
that all the Riser employees, whether former employ-
ees or Fisher, Seaway, or R & R, had equal status as
of the June 8 merger and that Local 507, in the ab-
sence of contractual provisions to the contrary, was
therefore obligated to treat all these employees the
same. By assigning endtailed seniority to the former
Local 400-represented R & R employees while dove-
tailing the seniority of the former Local 507-rep-
resented Seaway employees, the General Counsel ar-
gues that Local 507 violated its duty of fair representa-
tion to the former R & R employees by assigning them
inferior seniority solely because it had not represented
those employees prior to the merger. We disagree.
It is axiomatic that a bargaining representative’s
duty of fair representation extends only to the bargain-
ing unit employees it represents.7 Thus, in light of the
General Counsel’s argument, the central issue here is
whether Local 507 insisted that the seniority of the
former R & R employees be endtailed at a time when
Local 507 represented those employees and therefore
owed them a duty of fair representation. We agree
with the judge that it did not. Local 507’s duty of fair
representation toward the R & R employees arose only
after they were included in the Richmond Road bar-
gaining units as Riser employees. As noted above, the
former R & R employees at issue became members of
Local 507 and members of the Riser bargaining units
at various times between June 12 and July 24. It was
prior to that time, however, and during the negotiation
of the consolidation agreement, that Local 507 first
stated its opposition to Riser’s proposed dovetailing of
the R & R employees and insisted, in accord with its
past practice, that their seniority be endtailed when
they reported to the Richmond Road facility as new
Riser employees. Therefore, as the judge found, Local
507 refused to dovetail the R & R employees’ senior-
ity at a time when ‘‘Local 507 owed no statutory col-
lective bargaining duty of fair representation to any of
the then R & R employees.’’8
We also agree with the judge that even assuming
that Local 507 was obligated to represent the R & R
employees at some point prior to the consolidation of
operations but after the merger forming Riser, its dif-
ferent treatment of the former R & R employees was
not unfair or discriminatory and thus not unlawful. In
this regard, prior to the merger, Local 507, as the bar-
gaining representative of the Fisher warehousemen unit
and the combined Seaway driver/warehousemen unit,
owed a duty of fair representation toward all those em-
ployees. Local 507’s contracts with Fisher and Seaway
had identical seniority and successorship provisions.
Riser was the successor to both Fisher and Seaway,
and Local 507 had a duty to both the former Fisher
and former Seaway employees to ensure that Riser
abided by the terms of the agreements under the
successorship clauses, including the seniority provi-
sions that provided for retained seniority. Thus, Local
507 clearly fulfilled its duty of fair representation to-
ward both the former Fisher and Seaway warehouse-
men by dovetailing their seniority when they were
merged into the single Riser warehousemen unit, en-
suring that these employees retained their relative se-
niority. There were no such contractual provisions to
which Local 507 and the Employer were bound that
required the dovetailing of the former R & R employ-
ees’ seniority and Local 507 did not treat them unlaw-
fully by insisting, in accordance with its past practice,
that their seniority be endtailed.9
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
637RISER FOODS
1 All dates herein are in 1988, unless otherwise indicated.
Charles Z. Adamson, Esq., for the General Counsel.
Frank W. Buck, Esq. and Scott A. Moorman, Esq. (Duvin,
Cahn & Barnard), of Cleveland, Ohio, for the Respondent
Employer.
Keith R. Wolgamuth, Esq. and Thomas A. McCormack, Esq.
(Motta, McCormack, Wolgamuth & Watling Co., LPA), of
Cleveland, Ohio, for the Respondent Union.
Mary G. Balazs, Esq., of Cleveland, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. These
consolidated cases were tried in Cleveland, Ohio, on October
15–17, 1990. Douglas F. Schreiber, an individual Charging
Party (the Charging Party or Schreiber), filed an original
charge in Case 8–CA–21686 against Riser Foods, Inc. (Re-
spondent Employer, or Riser), and, Schreiber filed an origi-
nal charge in Case 8–CB–6465 against International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 507 (Respondent Union or Local 507),
each on March 24, 19891 (amended June 22, 1990), respec-
tively. A consolidated complaint (complaint) has issued
against Riser and Local 507 on May 14, 1990 (amended July
18, 1990).
The complaint alleges that in accordance with a demand
of Respondent Union made in violation of Section 8(b)(1)(a)
and (2), Respondent Employer in violation of Section 8(a)(1)
and (3) has unlawfully endtailed the seniority of 15 named
drivers and warehousemen that it had previously dovetailed,
as a result of which 7 named drivers were caused to be laid
off, lose their day off preference, as well as (be required) to
personally pay for health insurance coverage; eight named
warehousemen were caused to lose layoff preference; and, all
15 to lose: shift and vacation preferences; overtime; and, ca-
pability to successfully bid for jobs.
On the entire record, including my observation of the de-
meanor of all the witnesses, and after having considered the
briefs filed by the General Counsel, Respondent Employer,
Respondent Union, and Individual Charging Party on or
about February 25, 1991, I make the following
FINDINGS OF FACT
I. JURISDICTION
Riser is a Delaware corporation, with a principal office
and place of business in Bedford Heights, Ohio, where it is
engaged in the business of retail and nonretail sale and dis-
tribution of food and related products; and, from which busi-
ness, it annually derives gross revenues in excess of
$500,000. Riser has purchased and received at its above fa-
cility products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Ohio. Re-
spondent Riser Foods, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. I further find Local 507 is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The parties appear in general agreement the facts herein,
for the most part, are not in dispute, but are complicated, and
somewhat so in presentment. The issues in these cases have
arisen centrally out of a certain merger and consolidation of
several food service businesses in Bedford Heights, Ohio,
that occured in June 1988, and which was accomplished ma-
terially to effect certain desired efficiencies in warehouse op-
erations. Although the companies involved also had numer-
ous retail store employees represented by various unions,
those unit employee relationships are not (directly) involved
in this proceeding.
The material businesses that are involved in the merger
and consolidations are: Fisher Foods, Inc. (Fisher); American
Seaway Foods, Inc. (Seaway), and certain Seaway partner-
ships that were also constituted a separate subsidiary of Riser
but appear not otherwise material, and need not be discussed
at length herein; Rini Holding Company (Rini); and Rego
Supermarkets, Inc. (Rego). (The parties have stipulated that
Eagle Icecream Company is a separately operating entity of
Fisher, and is not involved in this proceeding.) Through the
certain merger and consolidations effected, the (essentially)
four businesses have combined as subsidiaries of a single
legal entity which is the Respondent Employer Riser herein.
As a result of the warehouse consolidations effected, the
Rini-Rego Warehouse Company (R & R), a separate partner-
ship of Rini and Rego, closed its warehouse, and thereafter
ceased all partnership warehouse operations. The alleged
discriminatees are all former employees of R & R.
The consolidation (or combination) of the above busi-
nesses was effected basically pursuant to a certain plan and
agreement for merger, which itself is to be distinguished
from a (closing) agreement negotiated by and between R &
R and an International (Teamsters) local union, namely,
Commission House Drivers, Helpers and Employees Union,
Local No. 400 (Local 400) that represented all of R & R’s
drivers and warehousemen employees (as well as apparently
retail store employees of Rini and Rego). Both the Riser plan
and agreement for merger, and R & R’s closing agreement
are then to be distinguished from a (consolidation) agreement
negotiated (with Riser representative present) but by and be-
tween, as is on its face to be signed, by Fisher and Seaway,
by Respondent Local 507, and by still another (Teamsters)
International local, namely, Truck Drivers Union Local 407
(Local 407).
1. Preconsolidation operations; collective-bargaining
agreements; and, effect thereon of the
consolidation negotiations
a. Fisher
Fisher, a publicly held corporation, through its then sub-
sidiary Heritage Wholesalers, Inc. (Fisher/Heritage, or where
clear herein, simply Fisher) has operated 55 retail grocery
stores (as well as some other retail stores). More materially,
Fisher operated a large grocery wholesale distribution ware-
house on Richmond Road in Bedford Heights, Ohio. In that
Fisher’s warehouse on Richmond Road was then operating at
but 35 percent of its capacity, the warehouse was being oper-
ated seriously under efficiently. In fact, Fisher at this time
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was losing substantial money; and, Fisher at this time desired
to bring about warehouse consolidations to the end of effect-
ing a more efficient use of its warehouse. Fisher anticipated
prior to the consolidation that was effected below, that a fold
of Seaway’s warehouse operations (to extent shown below)
would increase Fisher’s warehouse use to 85 percent of its
capacity, and thus would increase Fisher’s warehouse effi-
ciency overall substantially.
Prior to consolidation, Fisher/Heritage employed approxi-
mately 60 drivers and 180 warehousemen in its warehouse
and distribution operations conducted at Richmond Road.
Local 507 separately represented Fisher’s warehousemen em-
ployed at Richmond Road. Local 407 represented Fisher’s
drivers employed there.
(1) Fisher/Heritage Local 407 agreements/negotiations
(drivers)
Local 407 and (Fisher/) Heritage were parties to a collec-
tive-bargaining agreement covering Fisher’s Richmond Road
drivers. That (preconsolidation) Fisher/Local 407 (base)
agreement had a contract duration from August 1, 1985,
through July 31, 1988.
As noted in the evidence section below, negotiations for
a (consolidation) agreement were conducted starting in early
1988, and terms of such implemented (at least insofar as
agreed) on June 8. It appears warranted to present the effects
thereof on the various unit employees’ seniority, on changes
in the scope of units, and, on the contracts of each company,
as each company is considered, for clarity and comprehen-
sion purposes, albeit the chronology of events and a consid-
eration of nonduplication is somewhat thereby sacrificed.
The negotiated (consolidation) Agreement by its terms
provided for company signature by Fisher (and Seaway, but
not by R & R), and for union signature by Locals 407 and
507 (but not by Local 400). However, this agreement was
not signed by Local 507 (or Local 407) because draft of con-
solidation agreement, as initially submitted for the Union’s
signature by Riser’s counsel on May 11, contained a para-
graph (7) that provided for dovetail of a certain number (15)
of (former) employees of R & R, which Respondent Local
507 contends it did not agree to, and, in R & R plant (ware-
house) closure circumstances otherwise more conveniently to
be discussed below.
Apart from the disputed paragraph, the remaining terms of
the unsigned (consolidation) agreement were nonetheless im-
plemented (I find) on June 8, as previously negotiated to
agreement. As implemented (and as viewed from a base per-
spective of the former Fisher/Heritage incumbent separate
units of drivers, and warehousemen employees) terms of the
(consolidation) agreement have (in general): (1) affected
plant, or company seniority of former Fisher/Heritage em-
ployees who had previously been employed at Richmond
Road in separate and incumbent units of drivers, and of
warehousemen (below); and (2) in some measure effectively
altered the unit scope of each of the separate incumbent
units of drivers, and of warehousemen, employed at Rich-
mond Road warehouse.
Fisher and Local 407 have since the consolidation nego-
tiated an extension agreement that supplements and extends
duration of the above (preconsolidation) Fisher/Heritage/-
Local 407 base agreement (that had covered only the 60
former Fisher drivers), to April 1, 1990 (with automatic re-
newal). The parties have stipulated this base agreement as
extended is (still) applicable to, but covers only the 60 origi-
nal (former) Fisher (now Riser) drivers employed at Rich-
mond Road. The covered drivers are identified in the con-
solidation agreement as Fisher incumbent drivers ‘‘who were
on the Fisher driver’s [sic] seniority list at time of merger’’
(but hereinafter simply as Local 407 drivers). This arrange-
ment of a contractually limited unit application is one pro-
vided for by explicit terms of the negotiated consolidation
agreement.
Thus, all of Fisher’s original 60 drivers initially were, and
they are now (but only they) currently and separately rep-
resented by Local 407. With the subsequent transfer of cer-
tain Seaway drivers to Richmond Road, below, the 60
(former Fisher) drivers now constitute (but some of) Re-
spondent Riser’s driver employees employed at Richmond
Road. Only these 60 are now separately covered (though
Riser employees) as before by the base Fisher/Local 407
agreement (as now extended), except as certain other terms
and conditions of employment are shown governed by the in-
terim negotiated (consolidation) agreement.
In that regard, it is presently noted, as a result of agree-
ment reached by their collective-bargaining representative
Local 407, in negotiations for a (consolidation) agreement
conducted on their behalf with Fisher, Seaway, and Local
507 in early February (below), the incumbent original 60
Fisher drivers have had their plant, or (Fisher) company se-
niority dovetailed with the plant, or (Seaway) company se-
niority of all Seaway drivers represented by Local 507, as
made effective on merger, thus June 8.
The consolidation agreement has thus enabled a dovetail-
ing of Seaway (company) seniority of all (not just arriving)
Seaway drivers represented by Local 507, with all of Local
407’s incumbent drivers employed at Richmond Road, but
with a certain (essentially an attrition) provision that Local
407 would thereafter continue to represent only the (60)
Local 407 drivers that it had previously represented. Other
terms of the (consolidation) agreement have made it explic-
itly clear that Local 407 would not represent any of the ar-
riving Seaway drivers who were already represented and
under contract with Local 507, nor represent any new driv-
ers to be hired at Richmond Road, in that it essentially pro-
vided that Local 507 would represent those drivers (herein
also referred to as non-Local 407 drivers).
Other agreed terms and conditions of employment in the
(consolidation) agreement provide that (all) drivers (and sep-
arately, all warehousemen), are to have a combined classi-
fication, with transferability between warehouses. Thus the
consolidation agreement’s terms broadly provided that (all)
drivers in the combined driver classification (and all ware-
housemen in combined warehousemen classification), ‘‘may
be transferred to and from the Fisher and Seaway warehouses
as determined by the employer consistent with operational
needs.’’
In so far as new unit considerations may apply, I find in
passing that thereby (essentially) strong community-of-inter-
est factors are shown being broadly created and made present
in Riser Company base of dovetailed (former Fisher and Sea-
way) company seniority, as well as in the agreed conditions
of plant (warehouse) interchangeability for all the (new)
combined classifications of (former Fisher and Seaway) driv-
ers, and of warehousemen. Finally, the (consolidation) agree-
639RISER FOODS
ment also arranged different contractual coverages on the
units involved, as is definitively, but more conveniently set
forth below.
Fisher/Heritage/Local 407 (driver) agreement; and
(apparent) contrary endtail seniority provision
Apart from providing for plant or company seniority appli-
cation to certain benefits (in seeming intra company trans-
fers), the above preconsolidation base Fisher/Local 407
(drivers) agreement (Jt. Exh. A, art. IV) had otherwise ex-
plicitly provided contrarily for endtailing of any new arrivals
as follows:
Any person coming from another location or terminal
is to go to the bottom of the seniority list, with the un-
derstanding that management accepts no responsibility
if this procedure should result in jurisdictional disputes
or legal action of any type. This Article shall not be
used to alter presently established jurisdictional prac-
tices.
(2) Fisher/Heritage-Local 507 negotiations/agreements
(warehousemen)
Fisher and/or Heritage (also Fisher/Heritage or Fisher) and
Local 507 were signatory parties to a separate collective-bar-
gaining agreement with duration from April 1, 1986, through
April 1, 1990, which covered warehousemen employed at
Fisher’s (former) Richmond Road warehouse.
The consolidation agreement has also enabled the dovetail
of the plant or (Seaway) company seniority of the former
Seaway (now Riser) warehousemen with the plant or com-
pany seniority of the former Fisher (now Riser) warehouse-
men, both of whom (then and now) are represented by Local
507. Dovetail effected is of all Seaway warehousemen rep-
resented by Local 507, including those remaining at Sea-
way’s Aurora Road warehouse (below), and not just the Sea-
way warehousemen employed at Richmond Road warehouse.
The Fisher-Local 507 Agreement by its terms had no ex-
plicit provision to govern, or require dovetail, or endtail of
additions to this unit. However, on evidence of such as is
discussed further and credited below, I find Local 507 has
had a longstanding general policy and/or practice to require
endtail of new additions to its contractual units.
However, such policy/practice considerations presently
aside, an endtail of seniority (e.g., on an acqusition) was not
contractually required by either of Local 507’s relevant base
agreements. Indeed, the above Fisher-Local 507 (warehouse-
men) base agreement (and, the Seaway-Local 507 base
Agreement that covered both drivers and warehousemen),
provided for collective bargaining on any additions to con-
tract unit, as follows:
24. It is mutually agreed between the parties in the
event new equipment is added to perform work within
the scope of the bargaining unit or new operations or
classifications are added to the scope of the bargaining
unit, the parties will negotiate regarding wages, hours
and other conditions of employment as such may relate
to the new equipment or operations . . . .
(a) Fisher-Local 507 (warehousemen) agreement in
postconsolidation application
Fisher’s former warehousemen represented by Local 507
are still covered by the Fisher-Local 507 (warehousemen)
agreement. However, by the terms of the consolidation agree-
ment, and as the parties have stipulated, the Fisher-Local 507
(warehouse) agreement (with Seaway driver contract terms
now inserted) now extends coverage not only to all the (in-
cumbent, former Fisher) warehousemen originally employed
at the Richmond Road warehouse, but the coverage of that
contract is now made applicable to all of Seaway’s ware-
housemen who are also employed there, and, as is accom-
plished by insert of Seaway driver contract terms therein (Jt.
Ehx. C), also made applicable to former Seaway drivers and
any new drivers employed there, as shown next.
b. Seaway
(1) Seaway-Local 507 agreement (drivers and
warehousemen)
Seaway had operated a large wholesale grocery and
houseware distribution warehouse on Aurora Road in Bed-
ford Heights. The parties stipulated that just prior to June 8
(merger), Seaway had employed about 70 drivers and some
250 warehousemen there. Prior to June 8, Local 507 rep-
resented all of Seaway’s 70 drivers and 250 warehousemen
in a single unit at Aurora Road. Seaway and Local 507 were
signatory to a single collective bargaining agreement cover-
ing all of Seaway drivers and warehousemen employed at
Aurora Road. This base agreement had a duration from July
1, 1986 until July 1, 1990.
The parties stipulated that after consolidation (June 8), ap-
proximately 30 (of original 70) Seaway drivers and 50 (of
original 250) Seaway warehousemen remained employed at
Seaway’s Aurora Road warehouse. The Seaway drivers and
warehousemen remaining at Aurora Road warehouse now
limitedly service a postconsolidation ‘‘food service’’ division
of Seaway.
Most if not all of the other Seaway drivers (seemingly 40),
and the other Seaway warehousemen (200), are now em-
ployed at the Richmond Road warehouse, where they per-
form all Seaway warehouse and distribution operations other-
wise needed. (The parties stipulated that following consolida-
tions, Riser employed approximately 105 drivers and 385
warehousemen at Richmond Road.) However, the Seaway
drivers and Seaway warehousemen did not immediately
transfer from Seaway’s warehouse at Aurora Road to Riser’s
Richmond Road warehouse. Credited employee testimony
(below) establishes the first Seaway drivers did not start ar-
riving at Richmond Road warehouse until mid-August. Sea-
way warehousemen were phased there over longer period, in-
deed one that though it began earlier, did not end until De-
cember.
(2) Consolidation agreement effect on scope of units;
and on contract coverages
Pursuant to agreed and implemented terms of the consoli-
dation agreement, and/or all party stipulation, after the sepa-
rate dovetail of Local 507’s Seaway warehousemen and
Local 507’s Seaway drivers’ plant seniority is accomplished
with the plant seniority of Local 507’s represented Fisher
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
warehousemen, and with Local 407’s represented Fisher driv-
ers, respectively, on merger (below):
(a) The Seaway-Local 507 base Agreement covers
(only) warehousemen and drivers who are still em-
ployed at Seaway’s Aurora Road warehouse.
(b) All former Fisher and Seaway warehousemen
previously separately represented by Local 507 are
combined in warehousemen classification and are con-
tinued to be represented by Local 507; and, all of said
warehousemen employed at Richmond Road are cov-
ered under terms of the Fisher-Local 507 (warehouse-
men) Agreement (as is now negotiated with a Seaway
driver insert); and,
(c) All non Local 407 drivers, that is, all Seaway
drivers previously employed at Aurora Road warehouse
and now employed at Richmond Road warehouse, and
all new drivers hired there, are represented by Local
507; and, they are also now covered under terms of the
same said Fisher-Local 507 warehousemen (and now
driver) Agreement.
In that regard, by the agreed extension (e.g., insert of Sea-
way driver contract terms), the Fisher-Local 507 warehouse-
men agreement covers (Seaway and new) drivers employed
at Fisher’s warehouse at Richmond Road as (I find) appears
now clearly from all party stipulation, if not shown as clearly
in consolidation Agreement. The consolidation agreement
provided pertinently:
4. Following the merger of the driver seniority lists
as described above, the drivers who had been employed
by Seaway under a collective bargaining agreement
with Local 507, and all new drivers who are subse-
quently employed at the Fisher or Seaway warehouses
(other than those who were on the Fisher driver’s [sic]
seniority list at the time of the merger) will be rep-
resented by Local 507 and will be covered by the
present Local 507 collective bargaining agreement with
Seaway and any subsequently negotiated agreements
with local 507 covering drivers at the Fisher warehouse.
However, the parties have now stipulated (in clarification)
that Joint Exhibit C is the Fisher-Local 507 base (warehouse-
men) agreement that covers (combined) warehousemen,
‘‘with the Seaway driver provisions inserted into it.’’ As
presaged in the Fisher section above, the above provision of
the consolidation agreement of Fisher-Seaway-Local 507-
Local 407 has excepted explicitly from such Local 507 (driv-
ers’) contract coverage only the original 60 (former) Fisher
drivers who were initially employed at Fisher’s Richmond
Road warehouse at the time of merger. No issue of depart-
mental seniority is raised by the parties; and no issue thereof
is deemed involved in this proceeding.
(3) Remaining considerations of the consolidation
agreement
As consolidation agreement appears prepared by Em-
ployer, a dovetail is ‘‘Effective with the beginning of con-
solidated operations at the Fisher warehouse . . . .’’ None of
the first 6 paragraphs constituting the parties’ implemented
consolidated agreement refers directly to employees of R &
R, or to Local 400. In that regard, Local 507 has centrally
declared it represented R & R employees only upon their
being hired by Riser as new employees. The remaining mate-
rial provisions in paragraph (7) of Employer’s consolidation
agreement in regard to R & R employees, which was submit-
ted in draft by Riser counsel to Respondent Union for signa-
ture in May, but which are (at best) in issue as terms ever
agreed to by Local 507, are more conveniently discussed in
context below.
c. Rini supermarket operations; Rego supermarket
operations; and Rini and Rego partnership’s
warehouse operations
Rini operated approximately 10 supermarkets in the Cleve-
land area, as did Rego, each separately. Prior to the consoli-
dation, below, Reni and Rego as a partnership (R & R) oper-
ated a small warehouse at Industrial Parkway located in
Southwest Cleveland. R & R’s warehouse serviced all of
Rini’s and Rego’s supermarkets. The parties herein have stip-
ulated there were approximately 40 drivers and warehouse-
men employed at the Industrial Parkway warehouse, who
were then represented by Local 400. Prior to merger and
consolidation, R & R’s operation also needed more ware-
house space.
R & R’s warehousemen and drivers, who were employed
at Industrial Parkway warehouse, were covered under a cer-
tain collective-bargaining agreement that was negotiated and
signed by Rini, and by Rego, separately; and if not directly
(or separately) signed by R & R and Local 400, in any event,
was applicable to R & R’s warehouse. (Essentially, on the
evidence before me it appears, and I find it more likely, that
Rini and Rego are each separately signatory to a multiem-
ployer agreement with Local 400 that they, with Local 400
approval, have applied to their partnership’s warehouse. All
the other multiemployer signatories to that agreement are not
involved in this proceeding.) After the merger and consolida-
tions effected belaw, R & R closed its Industrial Parkway
warehouse operation that was covered by the above Rini and
Rego (hereinafter R & R) contract with Local 400; and, in
due course, as is more definitively set forth below, R & R
partnership ceased all warehouse operations thereafter. The
parties have stipulated that following completion of the con-
solidation, R & R no longer employed any one.
d. Riser, consolidations, and merger plan
Riser was incorporated under laws of the State of Dela-
ware on December 18, 1987, with stated purpose to acquire
Fisher and complete Fisher’s consolidation with Seaway,
Rini, and Rego. This was to be accomplished by Riser (es-
sentially) acting as a parent holding company in a consolida-
tion of those Companies.
To accomplish this, Seaway, Rini, and Rego first formed
a holding company, 5300 Corporation, to acquire and (sole-
ly) hold Fisher stock. That corporation continues in existence
for that purpose, but without employees, and without any op-
erations. Cleveland Food Sub, Inc. (Cleveland Food) was or-
ganized as a subsidiary of Riser for the sole purpose of ef-
fectuating certain corporate share transfers, and to then
merge with Fisher. At a special meeting held on June 2.
1988, upon register of a qualified vote by Fisher stockhold-
ers, the newly elected Fisher directors directed the merger
take place according to the certain plan and agreement for
641RISER FOODS
2 Respondent in brief observes that though the record reflects the
business agent’s name is Rudy Datibio, the last name of that busi-
ness agent is actually Nativio. I treat Respondent Union’s observa-
tion in brief as motion to correct record in that limited respect, and
grant same.
merger, whereby Fisher, Seaway, Rini, and Rego, each and
all (and the Seaway partnership), effectively became subsidi-
aries of Riser. All necessary final stock action, and the merg-
er itself was completed (I find) on June 8, 1988. (The parties
stipulated Fisher became a subsidiary of Riser upon the
merger of Fisher and Cleveland Food.) Dovetail provisions
of consolidation agreement were, ‘‘Effective with the begin-
ning of consolidated operations at the Fisher warehouse
. . . .’’
The parties stipulated Riser employed a total of 7200 em-
ployees in June, which included retail supermarket employ-
ees and administrative employees, who are not directly in-
volved in this proceeding; and, thus more materially, that fol-
lowing the consolidation Riser employed approximately 105
drivers and 385 warehousemen at the Richmond Road ware-
house. (Riser counsel testified that the retail store employees
were represented by various unions in various units, with
varied problems. Apparently the instant matter is the only
problem area in the entire merger and consolidation not re-
solved by involved parties.)
Riser Officers
The complaint alleges, Respondent Employer admits in an-
swer filed and/or on credited evidence of record, I find the
following named individuals occupied the position(s) set op-
posite their names, and, in all material times as set forth
were supervisors of Respondent Riser within the meaning of
Section 2(11) of the Act, and agents of Respondent Riser
within the meaning of Section 2(13) of the Act:
Charles A. Rini Sr. president and chief operating
officer, with a noncontrolling
ownership interest in Riser
Anthony Rego co-chairman and joint chief
executive officer
Glen A. Garson director of human resource
since (at least) November 25,
1988; and previously director
of personnel
Craig Seedhouse Transportation manager
through August 19
Pete Degiatano Transportation manager since
August 20
Joe DiMauro Perishables general manage
Sal Rego Supervisor, and (apparently)
part owner
Ray Ziedonis Supervisor
e. The Unions’ officers
Harold Friedman is president of Local 507; and (as mate-
rial herein) Steve French and Rudy Nativio are 2 (of some
20) business agents of Local 507.2 Bobby Kavilac, in times
material, was an agent of Local 507, if not also then an offi-
cial of Teamsters Joint Council 41. Kavilac has aided Fried-
man in certain negotiations, but particularly in driver matters.
William D. Cassidy is president, and, Sam Trecarichi is vice
president of Teamsters Local 407. In all material times,
Charles A. Cimlino Jr. was president, and John A. Lawson,
vice president, of Local 400.
f. The R & R-Local 400 agreements
(1) Base agreement
The collective-bargaining agreement between Local 400
and a multiemployer association of Stop-N-Shop super-
markets, of which Rego and Rini were members, and which
in any event (I find) was applicable to R & R warehouse op-
erations, had duration from August 24, 1986, to August 23,
1990. The parties have stipulated that contract covers no
Riser employees.
(2) Consolidation agreement
Local 400 was not present (I find below) for the February
negotiations that Fisher (Riser) and Seaway conducted with
Locals 507 and 407. Local 400 met thereafter individually
and separately with representatives of R & R (with a Riser
representative present), but then for the stated purposes of
negotiating a closing agreement that was signed by R & R
and Local 400 (only).
(3) Closing agreement
The closing agreement on its face and as it was executed
was agreed to and signed by R & R (only) and by Local 400
on June 3, 1988 (with pen and ink strike out of typed March
month). The agreement states it was ‘‘entered into for the
purpose of settling and resolving all matters between the par-
ties concerning the closure of the Company and its ware-
house at 4529 Industrial Parkway . . . .’’ In addition to con-
taining an ‘‘entire agreement’’ zipper clause, the closing
agreement also provided:
9. . . . Accordingly, each party waives and releases the
other party (including as applicable, its successors and
assigns, and any and all related or affiliated corpora-
tions, organizations, or entities) from all claims or
charges, whether known or unknown, arising out of or
in any way relating to the closure of the R & R ware-
house or employment there.
The closing agreement on its face shows: Local 400 nego-
tiated with R & R, and secured a signed agreement with R
& R for Riser hire of the 15 most senior R & R employees
(out of a unit of 40 drivers and warehousemen) and for dove-
tail of their respective R & R seniority upon hire by Riser;
that it was also agreed R & R employees hired by Riser in
that manner would not receive R & R severance pay already
negotiated for R & R employees on closure (and thus appli-
cable only to those not to be so hired). All remaining issues
herein have then centrally revolved around the seniority
Riser has provided the 15 former R & R employees upon
hire by Riser, with, or as I find below, without previously
having Local 507’s (or Local 407’s) full agreement thereon.
(Riser counsel’s written view of the February negotiations as
expressed in paragraph (7) of the related May 11 draft of
consolidation agreement is set forth below in the context of
the testimonial evidence bearing thereon.)
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Evidence
1. Statement of the central issues
The common elements of all the parties’ contentions ap-
pear to be that the disagreement of the contracting and inter-
ested parties in a consolidation agreement arose essentially
over whether Respondent Riser and Respondent Local 507,
in early February negotiations, had agreed in principle to
Riser’s hire of some former R & R employees, the number
of which was still to be negotiated, but with present agree-
ment also that Riser’s hire of such R & R employees would
be with the (former) R & R employees having dovetailed se-
niority with others having their seniority dovetailed, and,
whether (as the the General Counsel and the Charging Party
at least in brief apppear to contend) Respondent Local 507
has thereafter reneged on that mutual understanding and
agreement; or, whether the agreement was as Local 507 rea-
sonably understood it, as only that a negotiable number of
R & R employees on their plant closure would be hired at
Riser’s Richmond Road warehouse, but would be hired there
as usual, as new employees.
But even if it is to be determined there was not a full un-
derstanding and agreement that R & R employees were to be
hired by Riser with dovetail of R & R seniority, the issue
as then advanced by the General Counsel and by the Charg-
ing Party is seen to be, whether Respondent Local 507 has
nonetheless violated the Act in the overall circumstances of
this case, in having effectively negotiated the dovetail of se-
niority for its members, while Local 507 has simultaneously
enforced the position that the hire of any former R & R em-
ployees be as new employees, and thus without dovetail
right, thereby effecting disparate, and thus alleged resultant
discriminatory treatment of former R & R employees.
If so, further position of the General Counsel and the
Charging Party is that Respondent Riser has (essentially) also
violated the Act similarly, in acceding in the end to that un-
lawful union position, although the Employer had done so
only after having previously advanced and implemented its
contrary held position that there should be dovetailing of all
R & R employees on hire, starting in June, in the absence
of union agreement. It is so argued, despite Respondent Em-
ployer also having long thereafter resisted Respondent
Union’s contrary demands, until the Union’s demand, as
made in November in the busiest time of the year for this
particular food industry, was accompanied by a seriously
viewed threat of slowdown (or shutdown) that was unaccept-
able under the (claimed) circumstances that Riser’s financial
position was deemed still too precarious to risk the threat-
ened union action.
It is Respondent Local 507’s further contention on basis
of successorship and plant seniority provisions (below), that
since both its Fisher agreement (covering the 180 former
Fisher warehousemen it then represented at Richmond Road)
and its Seaway agreement (covering 250 Seaway
warehousmen and 70 Seaway drivers) that Local 507 also
represented, each gave preferential treatment to more senior
employees over less senior employees, and, since each agree-
ment required any succeeding company (here Riser) to be
immediately bound by the terms of each of the contracts ‘‘as
though it were the original Company signator thereto,’’ the
intent of each such agreement was clearly to preserve each
covered employee’s relative seniority thereunder, even if the
original company changed its format and disappeared.
Local 507 also argues therefrom, and employer in primary
argument appears to join, that Respondent Local 507 had an
absolute duty to Fisher warehousemen and to Seaway ware-
housemen employee-members that it represented at that time
to maintain the relative seniority of these employees that it
represented; and, so Local 507 argues, to extent that it has
in negotiations, and subsequently by actions required Riser’s
compliance with its adopted agreements, Local 507 has
merely fulfilled its own duty of fair representation to all the
unit employees of Fisher and Seaway that it then represented.
A difficulty with Local 507’s position is then seen by the
General Counsel and the Charging Party to arise from a con-
tended disparate dovetail of Seaway drivers represented by
Local 507 (members) with Fisher drivers, unrepresented by
Local 507 (nonmembers) that accompanied dovetail of Fisher
and Seaway warehousemen represented by Local 507, while
Local 507 denied plant seniority dovetail to R & R employ-
ees who (as Seaway) previously constituted a single unit of
drivers and warehousemen.
Neither the General Counsel nor the Charging Party limit
the argument to drivers. E.g., as with an agreed Fisher and
Seaway contractually based dovetail of Local 507 rep-
resented employees to be distinguished from any noncontrac-
tual basis in the dovetail of Local 507’s represented Seaway
drivers with incumbent Fisher drivers who were not rep-
resented by Local 507 and who then possessed their own
contractual right of endtail. Thus with argument made on
claimed right of the R & R drivers (who are also not rep-
resented by Local 507) to a nondisparate dovetail treatment
on the same basis as afforded Local 507 drivers. Seemingly
then, the argument is made as to R & R warehousemen, that
Local 507, having elected to agree to dovetail the nonincum-
bent Seaway warehousemen to the incumbent Fisher ware-
housemen, Local 507 as their mutual representative could not
stop there and deny the same dovetail right or opportunity
to other nonincumbent employees who were not represented
by Local 507.
In any event, the underlying related issues of the ‘‘notori-
ously difficult’’ tensions existing between union collective-
bargaining rights and union fair representation obligations in
the myriad changing units of represented and unrepresented
employees, frequently brought on by such company merger
and consolidations, is once again presented here, cf.
C. Morris, The Developing Labor Law, Ch. 28, The Duty of
Fair Representation, p. 1241 (2d ed. 1983).
The parties have stipulated that in the circumstances of
this case, the percentages of actual R & R drivers and ware-
housemen at the warehouse is not material. To that extent
disparate claim is to be limited. Local 507 otherwise cen-
trally answers, in material times Local 507 owed its bargain-
ing duty and fair representation obligations only to the units
of employees that Local 507 then represented; not to any
whom it did not represent and/or to whom it did not owe
collective-bargaining obligation; and thus, not to any of the
(former) R & R employees until they were hired.
643RISER FOODS
2. Preconsolidation successorship; company seniority
a. Fisher
The Fisher and Local 407 base agreement that had sepa-
rately covered all of Fisher’s (then 60) drivers employed at
Fisher’s Richmond Road warehouse had provided (essen-
tially) for plant seniority endtailing for ‘‘Any person coming
from another location or terminal . . . .’’ It also provided
for successorship in article 32, section 8 Sale or Transfer, as
follows:
Successor Clause: This agreement shall be binding
upon the Employer, its successors and assigns, upon his
heirs, executors, administrators, personal representatives
and assigns. In the event the Employer sells, assigns or
otherwise transfers the business of the company wheth-
er by sale of stock or assets or otherwise, during the
term of this Agreement, the prospective purchaser shall
be informed of this agreement and the sale made con-
tingent upon his or its agreeing to accept or be bound
by its terms in the event such purchaser continues the
business.
The Fisher-Local 507 (preconsolidation) base agreement
that separately covered warehousemen employed at the Rich-
mond Road warehouse had provisions that governed
successorship and plant (company) seniority, as follows:
Article XXI—Parties
This agreement shall be binding upon the Employer,
its succesors and assigns, upon his heirs, executors, ad-
ministrators, personal representatives and assigns. In the
event the Employer sells, assigns or otherwise transfers
the business of the company whether by sale of stock
or assets or otherwise, during the term of this Agree-
ment, the prospective purchaser shall be informed of
this Agreement and the sale made contingent upon his
or its agreeing to accept or be bound by its terms.
Should Company sell all or a major portion of its as-
sets, effect a consolidation, merger, reorganization or
perform any other act which would tend to alter change
or amend Company’s present business format, status or
entity, it shall do so subject to the continued existence
of this Agreement and shall in any such transaction
bind such new Company entity to this Agreement . . .
as though it were the original Company signator thereto
. . . .
Article V—Seniority
1. Each employee shall have plant seniority equal to
his length of continuous service with the Employer
. . . .
2. Layoffs, preference as to shifts, vacation periods,
and the advancement of employees to higher classifica-
tion shall be made in accordance with plant seniority,
but employees must be qualified for advancement to
higher classification regardless of seniority.
b. Seaway
The Seaway-Local 507 base agreement covering Seaway’s
(250) warehousemen and (70) drivers that were employed at
Seaway’s Aurora Road warehouse had the same (above)
successorship and seniority provisions that the Fisher-Local
507 base agreement had covering Richmond Road ware-
housemen.
c. R & R
The R & R-Local 400 base agreement pertinently provided
on seniority, new facilities, and, on successorship, respec-
tively:
7.1 It is agreed that seniority shall prevail at all
times. When a layoff is necessary, the last man hired
shall be the first man laid off, and when rehiring the
last man laid off shall be the first rehired, if available
within one week.
18.1 If major new warehouse facilities are opened
during the term of this Agreement, the Company and
the Union will confer on any operational problems or
other matters of mutual concern that may develop.
19.2 The parties hereto each agree that this agree-
ment shall be binding upon their respective successors,
administrators, executors and assigns. Thus the Em-
ployer further agrees that in the event it sells, transfers,
leases, encumbers, hypothecates its business, in whole
or in part, or in any other manner or means causes the
same to be done, the within Agreement shall run with
such sale, transfer, etc., and that said purchaser, trans-
feree, etc., shall be bound by the terms and provisions
of this Agreement. It is further agreed that in the event
the Employer intends to dispose of the business by any
of the aforementioned methods, it shall notify the pro-
spective purchaser, etc., immediately of the provision of
this Article, and the Union immediately of such pro-
spective sale, . . . .
3. The consolidation agreement negotiations
a. Early February
In February 1988, representatives of Fisher and Seaway,
including Riser’s labor counsel Robert P. Duvin (less clearly
of Rini and Rego, though the General Counsel so argues),
met with representatives of Teamsters Locals 507 and 407,
but clearly not with Local 400 (assertedly for the reason R
& R’s warehouse operation was too small). Apart from it
being then the more substantially contraindicated, e.g., if not
by the asserted reason for Local 400’s nonattendance, then
by certain (unconvincing) assertion of Riser labor counsel
that, being also R & R counsel, he guessed he also rep-
resented R & R there, I find it is not at all convincingly es-
tablished that the February consolidation agreement negotia-
tions were conducted by Local 507 with R & R, whether or
not Messrs A. Rego and C. Rini were present, though, it was
generally asserted by them later to certain former R & R em-
ployees that (they at least believed) there was an agreement
reached that Local 507 had reneged on (below). Local 507
was not otherwise present for, nor I find (on this record) did
Local 507 take part in any Local 400 and R & R negotiations
in regard to a consolidation agreement. Neither did Local
507 take any direct part in negotiations of, or sign the R &
R closing agreement. Local 507 (I find) was simply not at
that time involved as a representative of any of R & R’s
drivers or warehousemen.
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In contrast with the thus (at best) unpersuasive showing on
any R & R participation in this meeting, it is otherwise clear
from Riser Labor Counsel Duvin, that representatives of
Fisher and Seaway met ‘‘to not only fulfill the legal obliga-
tions of the companies, but to try to rationalize the entire
complicated problem as best as possible, so that operations
could go foreward with the minimum amount of disruption’’
and, to proceed to negotiate a ‘‘framework agreement’’ for
an equitable and efficient consolidation. Riser’s other labor
(negotiations) counsel (Marc J. Bloch) did not participate in
the February negotiations nor indeed, in any before June.
Called as the General Counsel’s witness, Riser’s labor (ne-
gotiations) counsel Duvin on cross-examination clarified that
prior to the big February negotiation meeting of Riser (whom
he equated with Fisher) and Seaway officials with Locals
407 and 507, Riser had first met in negotiations with Local
507 on several occasions. Duvin also revealed that it was ini-
tially the Company’s proposal to dovetail the seniority of all
employees (prior to any negotiations or agreement reached
with Local 400, which was accomplished later); and, until
the February 1988 meeting (next), Friedman’s prior attitude
had consistently been hostile to any dovetail, by anybody,
under any circumstances.
The ‘‘big’’ meeting of Fisher and Seaway representatives
and Riser labor counsel in early February was held at Local
507, in Friedman’s office. Duvin stated he was present there
as Riser’s counsel. Duvin otherwise recounted that there
were some five to six officials from Riser (Fisher) and Sea-
way present; six to seven representatives from Local 507, in-
cluding its President Friedman, and Bobby Kavilac (then) a
knowledgeable Local 507 agent relied upon by Friedman in
driver matters (if not then, as now an official of Teamsters
Joint Council 41). The two top officials of Local 407, Presi-
dent Bill Cassidy, and Vice President Sam Tricarichi were
there representing Local 407. No representatives of Local
400 were present for this February meeting. There is also no
evidence presented that Local 400 ever met with, let alone
came to an accommodation with Local 407 (and Fisher) on
the driver unit, as Local 507 did, though even that agreement
was reached not without substantial disagreements expressed.
Duvin related that in the February meeting, Local 407 had
first asked (Local 507) for a 50-50 split with an alternate
membership, but Friedman would not accept that. Duvin re-
called Friedman said, Seaway was his (Local 507’s) and
Riser was his; and, that was the way it was going to be. And
so it then was in a practical prospective sense. Local 507
then represented by far the largest number of (future Riser)
warehousemen and drivers, namely, 380 Fisher and Seaway
warehousemen and 70 Seaway drivers to Local 407’s 60
drivers, though those Local 407 drivers were the incumbent,
with a contractual endtail clause.
Understandably then Duvin recalled there was an occasion
when Friedman said that he believed that his Local 507 driv-
ers should go behind (endtail) the Riser/Fisher Local 407
(driver) seniority list (whose contract as succeeded to by
Riser on its face explicitly provided for that), but Duvin re-
called Friedman was argued out of that position by Kavilac
in Duvins’ presence. Although Duvin was not sure that
(change) occurred at the February meeting, it would appear
it had occurred then (and if not, more likely shortly before
meeting with Local 407), in that a voluntary dovetail of
Local 507’s represented Seaway drivers with Local 407’s
represented Fisher drivers, was dependent on Local 407’s
agreement to such a dovetail, since it otherwise would depart
from Local 407’s contractual right to require endtail of any
new arriving (driver) operation, to which contract Riser
would as well simultaneously succeed. In light of the parties
eventual voluntary unit agreements, no QCR is raised.
Duvin also recalled, Friedman said (prior to voluntary
agreement reached) he had Seaway drivers coming over with
10, 15, and 20 years of seniority; and he was not going to
have Local 407’s (Fisher’s) drivers have supremacy over
them. (If the statement is to be deemed inconsistent with the
Friedman initially stated position on an endtail application, it
is deemed as appearing only the more consistent and likely
said in light of other credited statements herein that are at-
tributed to Friedman.)
Duvin related that although Friedman did not like dovetail-
ing at all, and (at some point) said that Local 407 dovetailing
was the first he had ever done in his life, Friedman also said,
if he did not dovetail this time there would have been no
way to work it out (i.e., by voluntary agreement), as Local
407’s (Fisher) drivers were already in place. (However, it
seems that part of this conversation may appear misplaced
here, and have actually oocurred as part of a later conversa-
tion between these same individuals in June.) Duvin reveal-
ingly has testified of Friedman’s position as stated in the
February negotiations, even at that (the agreed dovetailing
with Local 407), Local 507 imposed an agreement on Local
407 to Local 407’s disappearance (in representing drivers at
Richmond Road warehouse) by attrition.
In any event, in what is discerned as revealing the most
probable source and occasion of the parties subsequent dis-
puted area of agreement, e.g., as was presented in the draft
agreement enclosure to the May 11 cover letter (below) re-
garding R & R employees, and rejected, Duvin’s further rela-
tion was that, with Friedman’s reluctant agreement to a
dovetail of Locals 407 and 507 drivers, that is when Duvin
thought Friedman ought to extend the same rights of dove-
tailed seniority to the R & R group of Local 400 people to
be negotiated to come over, though Duvin also has testified
both candidly, and credibly that he could not say Friedman
had explicitly agreed to do that in the February negotiations.
It was rather (I find) what Duvin thought Friedman would,
or should do.
b. The May 11 draft of consolidation agreement
Riser’s view of the agreements reached at the February
meeting(s) was set forth as an enclosure in a Duvin May 11
cover letter that was sent to both Local 507’s president Har-
old Friedman and to Local 407’s president William Cassidy,
for their signature. However, the enclosure was described by
Duvin as being in form of a proposed or draft agreement re-
flecting Riser Counsel Duvin’s ‘‘understanding, or . . . hope
for understanding’’ of the results of the earlier meetings.
The proposed consolidation agreement was submitted for
Local 507’s and Local 407’s (and Seaway’s and Fisher’s)
signatures (only). In addition to setting forth the above dis-
cussed provisions for the dovetail of seniority, combined
classifications and contract applications for Fisher and Sea-
way drivers and warehousemen (only), it contained the fol-
lowing provisions with respect to the seniority rights (and
wages) of R & R employees in paragraph (7) thereof:
645RISER FOODS
7. Employees who are employed by R & R ware-
house and represented by Local 400 will be given pref-
erential hiring status at the Fisher warehouse for hiring
into either the warehouse employee or driver classifica-
tions. Any such employees who are hired will retain
their wage rates which they had at R & R, and will re-
tain their seniority date at R & R to determine their re-
spective seniority dates at Fisher and to determine the
number of weeks vacation to which they will be enti-
tled after completion of a year’s service there. Other-
wise, the Local 507 collective bargaining agreement
[sic] will be fully applicable to them according to their
dates of hire at Fisher.
The above draft of consolidation agreement was never
signed by Respondent Teamsters Local 507 (nor by Local
407). There is no complaint allegation nor was contention
made (at least) at hearing that an agreement was reached
therein that Respondent Union has now refused to sign in
violation of the Act. In any event, in light of Duvin’s above
frank testimonial concession at hearing that he could not say
Friedman had actually agreed in the February negotiations to
an R & R dovetail, in the absence of any contrary signed
agreement, and in light of other credited and substantial con-
firming evidence below that the Union(s) did not, I presently
find that there was no agreement previously reached that in-
cluded Local 507’s (or Local 407’s) agreement on the R &
R dovetail terms as contained in paragraph (7) of the pro-
posed consolidation agreement.
It is then but all the more notable that all the terms of that
agreement, other than those relating to R & R dovetailed se-
niority that are in issue here, were timely put into effect
(with June merger) by all the involved contracting parties;
and, they are presently maintained in effect, except insofar
as they may have been supplemented in normal course in
base agreement by some extension agreement as described
above.
The Employer’s (May 11) cover letter specifically stated
the consolidation was to occur in June; and, Riser requested
that the enclosed document (the draft of consolidation agree-
ment) ‘‘be executed by the end of this month.’’ Duvin relates
he first learned within 1–2 weeks after sending the above
cover letter, at first but generally and indirectly, through
comments of Local 507’s business agent(s), but no less clear-
ly in May, that Friedman had a problem with the consolida-
tion agreement as submitted. Friedman told Duvin later (in
June) directly, in a phone conversation, specifically that the
draft agreement’s provision relating to dovetail of (former) R
& R employees was not acceptable to Friedman. An R & R
closing agreement containing that provision had been only
recently signed by R & R and Local 400, even if negotiated
earlier, e.g., in the spring, with R & R’s (and Riser’s) labor
counsel as negotiator.
In any event, Local 400 negotiated a closing agreement di-
rectly with R & R (and Riser) counsel. The closing agree-
ment, I find signed on June 3, provided only the 15 most
senior R & R employees could opt for employment with
Riser as a driver or warehouseman; and, that if they did so,
they would enjoy dovetailed seniority. The 15 most senior
were to be the 15 most senior who opted to work at Riser’s
Richmond Road warehouse, and not necessarily the most
senior; and they were of a 40 plus unit, thus less than half.
R & R driver Gary McCauley recalled 3–4 (I find 4) initially
qualifying, opted out with severance pay.
To the extent the 15 most senior opted to do so, they did
not receive the otherwise provided severance pay that had
been formulated for payment on basis of years of prior serv-
ice with R & R. Riser offered evidence R & R agreed to this
provision because it did not believe it had support, the nature
of which is left unclear. (Lack of support appears to be on
basis of limited R & R Local 400 contractual obligation ap-
plicable to any new warehouse operations opening, namely,
for R & R, or (at best) Riser through the successorship
clause, to confer; and/or a planned warehouse closure,
below.) However, Duvin relates, and Riser asserts that Local
400 representatives agreed because C. Rini and A. Rego had
tried to negotiate protection for the R & R employees; and,
they (Local 400’s representatives) knew that no better deal
was available. No representative of Local 400 has testified.
Unlike Fisher and Seaway, R & R planned to close its
smaller industrial Parkway warehouse after effecting a con-
solidation of its warehouse operations with Riser. Duvin re-
counts Local 400 later negotiated with R & R (with Riser
present) concerning closing R & R’s warehouse; and, they
fully bargained on the impact of that closing on employees
represented by Local 400. By terms of the closing agreement
signed by R & R and Local 400, it was also agreed that R
& R wages were to be paid to former R & R employees
hired by Riser at Richmond Road warehouse. Proposed con-
solidation agreement, paragraph (7), provided for the same.
Nativio testified the applicable contract wage rates of the
Fisher Local 507 agreement at Richmond Road were mini-
mus; and, Local 507 had no problem with Riser paying em-
ployees (e.g., R & R drivers and warehousemen) higher
wages (as R & R-Local 400’s contract wage rates appear to
be); or, in a use of R & R seniority to determine how much
a benefit (e.g., vacation) R & R employees were to receive,
though selection preference was governed by seniority estab-
lished in the bargaining unit. Any contraindication that may
appear in recollection of driver Walter J. Pusateri to the con-
trary, I credit the testimony of driver Guy Snodgrass in the
matter, and I find the former R & R employees were told
the pension at R & R stopped there, and, a pension would
start anew at Riser.
The R & R Local 400 closing agreement by its terms ne-
gotiated by and between, and signed by Representatives A.
Rego and C. Rini on June 3, 1988, on behalf of R & R, and
by Local 400 (only) after reciting a conditional exclusion of
certain (severance) pay to any employee hired by Riser, con-
tained the following pertinent provision:
5. The Company agrees to provide employment to
the 15 most senior employees on the current seniority
list (a copy of which is attached hereto) at Riser Foods
Inc. In addition, the remaining employees on the senior-
ity list shall be given consideration for hiring into the
driver and warehouse bargaining units at the warehouse
at 5300 Richmond Road. In deciding which employees
to hire after the first 15 on the seniority list, Riser
Foods Inc. will consider seniority, but it will have full
discretion to make the final determination. This agree-
ment is not conditioned upon the hiring of any specific
employees other than the fifteen (15) most senior em-
ployees as set forth in this paragraph. [G.C. Exh. 3.]
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Duvin recounts that in a Duvin-Friedman phone conversa-
tion that (I find) occurred later in June, Local 507 President
Friedman had: (1) indicated Local 507 would not agree to
any dovetailing of the former R & R warehouse employees
into the unit Local 507 represented at the (now referenced)
Riser warehouse; (2) but agreed with the dovetailing of the
(70) Seaway drivers (represented by Local 507) with the
original (60) drivers who (formerly) worked for Fisher there,
and whom Local 407 was to continue to represent (after such
dovetail); and that relatedly (3) had stated his rationale for
(taking) this position was that Local 407 had the established
driver bargaining unit at the Riser warehouse prior to con-
solidation, and Friedman had no choice but to dovetail them
into the unit represented by Local 507.
Notably, Duvin testified in the June conversation he had
with Friedman, Friedman also said that he would keep what
he believed to be his commitment to accept the negotiated
number of R & R employees; but that he was not going to
honor what Duvin was pushing on him as if not an explicit
acceptance, as a tacit acceptance. To the contrary Friedman
asserted that historically, when he was on the losing end of
a merger, in the sense he had a unit absorbed by another
larger entity, that was it; and, Friedman said he absolutely
would not give the R & R people (drivers and warehouse-
men) their transferred seniority. While the precise day this
conversation occurrred in June is not clear, it is clear that
Riser had Local 507’s answer on the draft, timely; and, that
Duvin’s conversation with Friedman oocurred most probably
on, or shortly after June 8.
c. Bloch’s Meetings with Friedman on June 8,
and thereafter
Riser’s other counsel Bloch has testified credibly that his
involvement in related meetings with Friedman began on
June 8. Bloch recalled that on that occasion he was going
over to Friedman’s office on other matters when Duvin asked
Bloch, would you please see if you could get this (consoli-
dated agreement draft) document signed; saying, ‘‘I’ve been
having problems getting it signed.’’ Bloch was not then
aware Local 400 people were to be dovetailed; and, Bloch
relates Duvin did not spotlight Local 400, or paragraph (7).
Bloch brought it over to Friedman. Bloch asked Friedman to
sign it, but Friedman did not.
Bloch relates however that Friedman went over it, para-
graph by paragraph, saying of each paragraph that he had lit-
tle if any dispute, except for one, paragraph (7), regarding
the dovetail of R & R drivers and warehousemen. Friedman
told Bloch (specifically) there was no agreement on that.
Friedman also told Bloch, Friedman never dovetailed anyone
into his contracts, or into his bargaining units, and he was
not going to start now. Bloch recalled on cross-examination,
that Friedman said, he was not going to bring in new em-
ployees, and put them in, over, and above current employees.
While stating not Friedman’s words, Bloch presumed from
what Friedman said, that Friedman was speaking of, or his
reasoning was based on a dilution of the seniority of his cur-
rent members; and Friedman said, he did not need to discuss
it further.
Towards the end of June, Bloch was told to go back (to
Friedman); and he did. Indeed Bloch continued discussions
with Friedman throughout the summer. Bloch relates Fried-
man never signed the agreement; and Friedman never gave
a reason why he refused to dovetail (seemingly specifically)
Local 400 members. Bloch recalled that Friedman did say
that he had agreed to dovetail Local 407 drivers, because
they were incumbent; Friedman (Local 507) was essentially
coming in as a new successor union; and it was something
he thought, or Local 407 persuaded him that he should do.
d. The Union’s related evidence
Local 507 has employed Rudy Nativio as a business agent
for 17 years. Nativio was not personally involved in the Feb-
ruary negotiations between Riser (Fisher) and Seaway, and
Locals 407 and 507. However, Nativio testified that he re-
called that (only) Locals 507 and 407 had met to resolve the
issues; and, he did not recall others meeting. Nativio recalled
being told the executive boards (presumably of Locals 407
and 507) had decided that they were going to dovetail these
two memberships. There is no convincing evidence offered
that Local 507 ever met with Local 400; or, that Local 400
met with Local 407. Local 507 regularly assigns all its (then
20) business agents to represent employees of all the compa-
nies it has under contract; and (I find), Nativio (and they) re-
ceived instructions about this consolidation and its con-
tract(s).
Thus, on the subject of the dovetail of Fisher and Seaway
warehousmen (and drivers), Nativio testified credibly Fried-
man told them that after a long consideration, Local 507
members from Seaway and Fisher would be dovetailed.
Nativio also testified credibly that before the merger took ef-
fect Fisher and Seaway employees knew that they would be
dovetailed. There were huge meetings with Seaway and Fish-
er employees where that was explained. During a meeting,
when it was asked what about those R & R employees who
lost jobs at R & R, it was said the R & R employees can
apply for employment at Riser; and, that the R & R people
would go to the bottom of the list as new employees, if they
did come in as supposed. Nativio recalled (credibly) it was
also said (generally) that anyone, hired from any where,
other than Seaway and Fisher, would go to the bottom of the
list. Nativio testified (and I find) on weight of credited and
mutually consistent evidence of record the meeting(s) was
(were) held at least prior to the merger effectuation on June
8, but more probably after the merger was directed on June
2.
Nativio asserts the R & R employees came as new em-
ployees (at least from Local 507’s perspective); and, Nativio
testified that Local 507 never agreed to their dovetail.
Nativio also asserted Local 507 was not opposed to their
hire, though testifying (candidly) that as a business agent he
was concerned about it (R & R hire) because his past experi-
ence is that when people come from another local, a lot of
times they come with higher expectations than what is really
the fact; and, it can cause dissension in the warehouse. How-
ever, Nativio added, its nothing that cannot be handled; it is
just more work.
Nativio has confirmed that under the Fisher-Local 507,
and under the Seaway-Local 507 contracts seniority accrues
when an individual is hired into a bargaining unit. Nativio
stated dovetail of seniority (at least) as applicable to all Fish-
er and Seaway warehousemen here was because Local 507
had a responsibility to the dues paying members in both
cases; and, since in both cases the contracts had
successorship clauses, the survivor (sic, in context successor)
647RISER FOODS
had to fulfill the contracts. When questioned, Nativio ex-
plained that when he said Local 507 members, he meant bar-
gaining unit members, and he confirmed the key operative
fact is an emplayee’s entry into the bargaining unit. Here, by
operation of the successorship clauses, Riser was bound.
Thus when the two (Fisher and Seaway) warehouses were
merged in that circumstance to one warehouse unit, since
Local 507’s duty was to all of them, they dovetailed. They
used the prior company’s original start date for the dovetail,
and not the Riser merger hire date. Nativio summarized, they
(Local 507) had to be fair to all of the people that they rep-
resented, so they dovetailed their seniority.
Respondent Local 507 relatedly, but more definitively con-
tends in brief that by virtue of the Successorship and Plant
Seniority clauses in the Fisher (warehousemen) and the Sea-
way (warehousemen and drivers) agreements (both of which
bound Riser), Local 507 had an absolute duty to maintain the
relative seniority of those it represented in the unit during the
consolidation, but that it had no such duty for R & R em-
ployees whom it did not then represent, nor did it thereafter,
until (as it contends) the R & R employees were later hired
in the unit, but then as new employees.
Nativio had somewhat more difficulty explaining the rea-
soning behind the dovetail of Local 507’s (Seaway) drivers
with Local 407’s (Fisher) drivers. First, Nativio again testi-
fied that he was not involved in the negotiations that led to
that; (confirmed) that at one time Local 507 had said it
thought Local 507’s (Seaway) drivers should go to the bot-
tom of the (Fisher drivers’) list; and that, his superior told
him it was Local 407’s wish that they would like to see
Local 507’s drivers dovetailed with Local 407’s drivers, or,
insistent that Local 507’s drivers be dovetailed.
Nativio (eventually) acknowledged (and I find) had Local
507’s initially stated (endtail) position prevailed, the least
senior (Fisher) driver at (represented by) Local 407 at Rich-
mond Road warehouse would have been more senior than
any Local 507 represented driver coming from Seaway (any-
thing to the contrary appearing in Nativio’s other testimony
on seniority positions notwithstanding). Indeed, I find
Nativio has more credibly related that he did not know what
prompted Local 407 to ultimately come to the Local 407-
Local 507 dovetail decision on (Fisher-Seaway) drivers.
Nativio candidly acknowledged that in his experience, that
arrangement was one that had never previously been arrived
at. However, when it came to the seniority of R & R em-
ployees, Nativio testified categorically, Local 507’s position
has always been that they came into the bargaining unit as
new employees.
The record reveals clearly that such an endtail was Local
507’s normal, or general policy. Nativio has supportively re-
called generally there have been instances where people
came to Local 507’s locations from other cities; and, they
went to the bottom of the local (unit) seniority list. Nativio
continued, on any number of occasions when other locals
came into their (Local 507’s) jurisdiction, that is to a loca-
tion where Local 507 had a contract, e.g., on a plant closure
in other States, they went to the bottom of the list. Nativio
added, when companies that Local 507 represented, pur-
chased other companies and then offered employment (to
some) in local plants, they also went to the bottom of the
list, though some employees (of essentially the same com-
pany) felt they should have carried their seniority; and, it
caused friction. Nativio recalled examples of a number of in-
stances where Fisher-Fazio stores represented by Local 880
obtained jobs in Fisher’s warehouse; and, they went to the
bottom of the list. Nativio explained, though the contract
speaks of length of service with the company, it really means
(seniority starts) when you come into the bargaining unit.
Nativio summarized: he had explained Local 507’s posi-
tion on seniority and dovetail to Riser employees; he has an-
swered questions about it; he has told them seniority starts
when the individual is hired into the bargaining unit; and, he
has never told anybody anything different. However, Nativio
has also testified (unqualifiedly) there is nothing in the (Fish-
er-Local 507) contract that prohibits dovetailing.
Preliminary analysis on the credility of Local 507’s
claimed position on dovetail
The General Counsel and the Charging Party argue that as-
sertions that Local 507 dovetailed its Seaway drivers with
Local 407 Fisher drivers because Local 407 had effectively
urged it upon Local 507, is simply not credible in the overall
circumstances of this case. First, I credit the basic assertions
of Respondent Riser, that it was Employer that pushed dove-
tail; and, Friedman initially said his normal position which
was against dovetailing, but Friedman also said he was ada-
mant Fisher drivers would not have seniority over his more
senior Seaway drivers; and that in regard to their prospective
endtail, Friedman was then successfully ‘‘argued out of that
position’’ and then voluntarily consented to the dovetail of
all the Seaway drivers (whether they were to be transferring
to the Richmond Road warehouse, or staying at Aurora Road
warehouse) with the (incumbent) Fisher drivers employed at
Richmond Road because the Fisher drivers represented by
Local 407 were already employed there.
The record does not reveal what Local 507’s intended al-
ternative course of action may have been to prevent Local
407 supremacy. However, as to the claim advanced here that,
because Local 407 possessed an endtail right in a contract
expiring in 3–4 months, that it is simply not credible for
Local 507 or Riser to assert that Local 407 in the negotia-
tions being conducted with Local 507 had pressed for a
dovetail solution, it seems to me, that depends on what Local
407 may have reasonably thought its alternatives were at the
time, which are not clearly revealed. (No representative of
Local 407 has testified.)
What is clearly revealed (and what I find), is, there was
obviously not only an agreement reached between Local 407
and 507 on a dovetail of drivers, but the initial press for such
dovetail was from Riser, and the agreement of Fisher and
Seaway was also for the questioned Riser dovetail of all Sea-
way and Fisher drivers, rather than a Riser (Fisher) endtail
as provided by Fisher-Local 407 contract. To be sure, if
nothing else were to be considered, that might be viewed as
to have worked so solely to the disadvantage of Local 407’s
drivers, as to raise question of Local 407 actually urging it
upon Local 507 as the way to proceed in the consolidations.
However, and apart from the general consideration of work
accommodation with the overwhelming numbers of Local
507 represented drivers and warehousemen to be employed
therafter in the Richmond Road warehouse, brought on by
the consolidations being effected, still other important agree-
ments were reached between these same parties.
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E.g., Local 507 agreed to Local 407’s continued represen-
tation of the original 60 Fisher drivers separately in future
collective bargaining, thus relieving Local 407 of any risk of
any intended contrary Local 507 action (be it by Local 507
mounting some cross-organization campaign, or raising a
QCR and pursuit of Board certification in conduct of an elec-
tion in an overall unit (through globe election, or otherwise),
even if in present circumstances under which Local 407’s
bargaining rights are limited, may eventually expire by attri-
tion, if not be earlier ended, or, be otherwise renewed, with
time.
Then too, by terms of the consolidation agreement
reached, Fisher and Seaway, as prospective new subsidiaries
of Riser, not only have obtained their desired contractual ac-
commodation frame for a smooth merger and consolidation
that would make them subsidiaries of Riser, and in posture
to attain the warehouse efficiencies anticipated to be accom-
plished from such action, but they have also obtained new
and important union agreement on other terms and conditions
of employment, e.g, on combined classifications in ware-
housemen, and in drivers, and with Fisher and Seaway ware-
house assignment interchangeability. It would seem in such
circumstances neither I, nor the Board need evaluate any fur-
ther the nuances of the bargain that was struck by the in-
volved parties cf. H. K. Porter Co., 399 U.S. 99 (1970). In
any event, I reject urgings that Local 407’s press for dovetail
as an acceptable solution, along with the Employer urging,
was itself incredible; and, in that sense, I shall leave the par-
ties to their own bargain.
e. Implementation
When the proposed consolidation agreement’s provision
for hire of former R & R employees with their R & R se-
niority dovetailed with others was not agreed to by Local
507, Riser put it (dovetailed R & R seniority) into effect in
June, as a position Riser held, in the absence of an agree-
ment with the Unions. Riser’s asserted reasons for doing so
were: because its position to dovetail the seniority of the (15
former) R & R employees it proposed to hire was in accord-
ance with the agreed provision in the R & R-Local 400 clos-
ing agreement recently signed on June 3; and, as Duvin has
asserted, because it was the right thing to do. Riser thereafter
maintained that position in effect, over the Union’s continu-
ing objection, through November. In that regard, Duvin sum-
marizes: we took that position, strongly held (it), firmly for
a period of weeks that turned to months; and, we ultimately
had our mind changed (in the circmstances discussed below).
The General Counsel’s employee witnesses (who con-
stitute a substantial number of the former R & R employees
hired) establish, and/or the parties have also effectively stipu-
lated, that between June 12 and 24, all 15 below named em-
ployees had reported to work at Riser’s Richmond Road
warehouse in Bedford Heights, at which time Riser dove-
tailed their R & R plant seniority in the respective driver, or
warehousemen seniority list. Riser also notified all 15 drivers
and warehousemen it had done so. The 15 former R & R
drivers and warehousemen who are the alleged dis-
criminatees herein, are:
Drivers
Bossard, Alan Pusaterri, Walter
Bridges, J. Rease, James
Genco, Tony Snodgrass, Guy
McCauley, Gary
Warehousemen
Anthony, David Lugo, Kenneth
Commella, Charles Schreiber, Douglas
Gibboney, John Uttrback Roger
Hallman, Douglas Ziats, Larry
Although there is some conflict in the recollections of
some of these employees on when they started, on the basis
of what appears as the more consistent, and thus credible
employee evidence, and especially, in the light of the sup-
portive stipulation of the parties, I find that the first (former)
R & R employees hired, namely four warehousemen
(Schreiber, Gibboney, Commella, and Utterback), started
their employment with Riser on June 12 (Sunday), and the
first five drivers hired (Snodgrass, Rease, Pusateri, Bridges,
and Bossard) started their employment with Riser on June 13
(Monday). Riser employed a sixth (former) R & R driver
(Genco) at Richmond Road warehouse in early July; and, it
employed the seventh and last (former) R & R driver
(McCauley) there on July 24. Riser also employed the last
four former R & R warehousemen (Hallman, Anthony, Ziats,
and Lugo) on July 24. (G.C. Exh. 13, a seniority list that
shows R & R warehousemen without R & R dovetailed se-
niority also definitively shows the first 4 R & R warehouse-
men reported on June 12; and, the second group of four R
& R warehousemen reported on July 24.)
f. The drivers’ evidence
Although Respondent Employer Riser has conceded Re-
spondent Lccal 507 had registered a continuous objection to
the dovetailing of any R & R employees, starting (at least)
in May, thus before the claimed merger and consolidation
was effected, that is contested by the General Counsel and
the Charging Party in part on basis that seniority lists subse-
quently generated by Riser (in July and August) and trans-
mitted to Respondent Local 507 reflected Riser’s action, and
Respondent Local 507 did not demand change until Novem-
ber 1988, below. Some employees, e.g., McCauley have (es-
sentially) registered similar complaint Local 507 never timely
told them of Local 507’s contrary position on their (R & R)
dovetailed seniority. In contrast, Respondent Local 507 relies
very heavily on essentially mutually corroborative conces-
sions of Riser’s counsels (Duvin and Bloch) that Local 507
had in fact timely and continuously objected to dovetail of
the seniority of the former R & R new employees.
Bossard recalled that on June 9, he (and others) went by
Local 507’s hall. When he was asked his name, and what he
was doing there, Bossard replied, Sal Rego (then an R & R
supervisor), told him to come down and sign up. When the
Local 507 employee to whom he was talking (essentially)
said that they did not know Bossard, Bossard explained fur-
ther R & R had told him to come down and sign up because
he was starting at Richmond Road warehouse on Monday.
A business agent then said, ‘‘Well that’s okay; these guys
are okay, go ahead. Bossard filled out some paper work.
Though he did not recall what it was, Rossard thought he
had filled out a dues-checkoff authorization. He did not re-
call filling out an application for employment; and, he did
not talk about seniority. Bossard’s understanding was he had
649RISER FOODS
immediate benefits from Local 507, as soon as he signed the
form.
Driver Genco confirmed that before leaving R & R and re-
porting to Riser, R & R’s supervisor Sal Rego (S. Rego) and
R & R’s perishables manager DiMauro told certain R & R
employess they were to be hired by Riser; that they would
have dovetailed seniority; and, that they would be part of
Local 507. Genco recalled some, but not all R & R employ-
ees had filled out (Riser) employment applications. Although
Genco recalled (timely) receipt of a copy of the R & R clos-
ing agreement negotiated by Local 400, Genco did not recall
whether it referred to R & R driver seniority being dove-
tailed (as it does). However, Genco recalled that there was
a notice posted at R & R which did refer to their (R & R)
seniority being dovetailed. Snodgrass (partly) confirmed that
there was a notice posted on closing the facility.
Of the five (former) R & R drivers initially employed at
Riser, four to five recalled first reporting to Riser’s Rich-
mond Road warehouse on June 11. The fifth driver recalled
being told to start the following Monday (which was June
13). Thus all five drivers were there on June 11. Driver
Bossard has thus testified (with substantial corroboration)
that on June 11, Riser’s (then) Transportation Manager
Seedhouse told Bossard and four other (reporting) R & R
drivers (Bridges, Pusateri, Rease, and Snodgrass), they would
be working with the (Fisher) Heritage drivers at that location;
that their seniority would be dovetailed; and that Riser would
soon make a new seniority list that would reflect it. Pusateri
confirmed Seedhouse told the drivers they would be starting
there the following Monday with dovetailed seniority.
When driver Genco reported to Riser in early July, Genco
questioned his seniority status. In Riser’s tranportation office
at Richmond Road (then) Transportation Manager Seedhouse
first showed Genco a (seniority) list where Genco (and other
former R & R drivers) was (were) dovetailed then with the
Fisher/Heritage drivers only; and, Genco appeared two-three
from the bottom of that list. However, at the same time,
Seedhouse showed Genco an overall combined (Fisher, R &
R, and Seaway) dovetailed drivers’ list that would be appli-
cable when the Seaway drivers came over to Riser. On that
list, Genco recalled he was sitting in a pretty good position,
96 out of 120. The (consolidation) agreement as applicable
to the dovetail of Fisher and Seaway drivers, provided that
drivers then on layoff (an undisclosed number, but apparently
as many as 15) would appear on the seniority list in accord-
ance with their respective contractual recall rights.
Genco also confirmed the first (Fisher and R & R) dove-
tailed seniority list was posted at the time of Genco’s arrival
in early July; and, it remained posted until August when Sea-
way drivers started arriving at the Richmond Road ware-
house. At that time, the second (Fisher, R & R, and Seaway)
dovetailed seniority list was posted; and, it remained posted
until November, when certain seniority problems discussed
below, developed.
Some drivers were interrupted in assignments after em-
ployment at Riser, and returned temporarily to R & R, and/or
worked for brief (weekend) periods at Richmond Road, be-
fore they were assigned to work permanently at Richmond
Road. Driver Bossard worked at Richmond Road 1 week; re-
turned to and worked at the R & R warehouse for 1–2
weeks; and then Bossard reported back to Riser permanently,
through even then, he has related generally they shuttled
drivers back and forth as needed. Driver McCauley worked
at Richmond Road warehouse on three weekends (while he
was wrapping up at R & R), before McCauley’s regular em-
ployment at Richmond Road began on July 24. When driver
McCauley came to work on Friday, July 22, R & R Day-
Shift Foreman Sal Rego told McCauley that later that day he
would be going down to Local 507 with some other employ-
ees (warehousemen) to fill out transfer papers to transfer
from Local 400 to Local 507; and, they would be starting
at Riser next week.
Indeed, McCauley relates that on the last such weekend he
worked, July 23 (Saturday), Riser’s (then) Transportation
Manager Seedhouse said that he needed to talk to McCauley.
Later, in the dispatcher’s office, Seedhouse informed
McCauley that by virtue of his seniority he would be entitled
to a job bid with a 7 a.m. start time, starting Sunday, July
24 (through Saturday with Tuesday and Wednesday off).
McCauley viewed that as a favorable starting time. In ac-
cordance with his usual custom, McCauley obtained a per-
sonal copy of the then applicable seniority list, which he ob-
served was also posted on the bulletin board under glass at
that time (July 23). On a dovetailed seniority list of Local
407 (Fisher/Heritage) and Local 507 drivers (then only the
former R & R drivers hired), McCauley was number 68 of
69.
While driver Genco has acknowledged R & R did not tell
Genco that Local 507 had agreed (to R & R dovetail senior-
ity); nor, that they had attempted to negotiate an agreement
with Local 507 to dovetail (R & R) seniority, and Local 507
had refused to sign it. Genco also testified he did not ask.
Genco has testified, Local 507 business agents saw the (sec-
ond) combined seniority list posted in August, but they
(Local 507’s business agents) did not tell Genco (then) that
he should not have that dovetailed seniority. However,
Genco has acknowledged that he has never seen a written
agreement that Local 507 agreed to a dovetail of R & R em-
ployees; and, no Local 507 business agent had ever said that
they did.
No Seaway drivers arrived at Richmond Road warehouse
before mid-August. Thus, as of July 24, all seven former R
& R drivers employed at Richmond Road had their R & R
seniority dovetailed at first with Local 407 (Fisher/Heritage)
drivers only; and, later also with Seaway drivers. However,
I also find that the old R & R warehouse was continued to
be used as a Riser products storage area until about the sum-
mer of 1990, at which time, according to the seemingly
uncontested testimony of driver McCauley, the small R & R
warehouse was then finally sold, or leased to another com-
pany.
Unlike warehousemen, drivers have been laid off for some
periods (below). The former R & R drivers occupied the fol-
lowing relative dovetailed positions in the Richmond Road
drivers unit, pre/post-Seaway drivers’ arrival in mid-August
(with date of a retiree excepted from consideration as imma-
terial):
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Name R & R DriverSeniority Date
Dovetailed Pre-
Seaway Arrival
Standing in
Unit of 69
(G.C. Exh. 7)
Dovetailed
Post-Seaway
Arrival Stand-
ing in Unit of
120 (G.C. Exh.
8)
Snodgrass 7–13–70 No. 16 No. 23
Rease 4–10–72 No. 21 No. 29
Pusateri 5–21–73 No. 26 No. 35
Bridges 5–24–76 No. 43 No. 59
Bossard 12–03–79 No. 66 No. 94
Genco 6–09–80 No. 67 No. 96
McCauley 6–30–80 No. 68 No. 97
g. The warehousemen’s evidence
Warehouseman Schreiber confirms that on June 9 he and
certain other R & R employees were sent to Local 507 to
transfer their membership there from Local 400. Ziats, who
arrived in the second group, has revealed that R & R’s man-
ager DiMauro told Ziats that DiMauro wanted to get R &
R people over to Riser before more of the Seaway people got
there, so that they would have higher department seniority.
Lugo (who was not originally qualified) recalled that in a
meeting with R & R officials, he (and others) were told only
the top 15 (seniority) guys would go to Riser; but, they were
also told the rest of the people could wait and see if they
would bring us over there; or, they could take a buyout.
When asked to confirm there was no contractual claim ad-
vanced for the R & R employees to follow the work out to
Riser, Anthony replied only that Local 400 had said they
were trying; and, Local 400 told them (R & R employees)
to get withdrawal cards and go over to Local 507 and sign
out.
The R & R dovetailed seniority date appears not available
for Schreiber, Gibboney, Hallman, and (not fully for) Lugo.
With increased employment at the warehouse, no former R
& R warehouseman has been laid off. When later assigned
an endtailed (hire date) seniority in the Riser warehouse unit
(rather than prior company awarded R & R dovetailed se-
niority as with other warehousemen), former R & R ware-
housemen clearly had their seniority adversely effected as
may only in part, but no less effectively be seen from senior-
ity positions occupied in (their) endtailed seniority list of
373, and a comparison of the available dovetailed position of
Anthony, though that list (apparently) excepted 10 ware-
housemen at Aurora Road warehouse. Listed, in order of se-
niority, are:
Name
Seniority
Date
Riser
Hire
R & R
Hire
November
1988 Non-
dovetailed
(Unit 373–
383) if Dove-
tailed
Schreiber 6–12–88 No. 335
Gibboney 6–12–88 No. 336
Commella 6–12–88 7–10–78 No. 337
Utterback 6–12–88 6–02–80 No. 338
Hallman 7–24–88 No. 342
Anthony 7–24–88 7–13–81 No. 343 No. 250, or
251
Name
Seniority
Date
Riser
Hire
R & R
Hire
November
1988 Non-
dovetailed
(Unit 373–
383) if Dove-
tailed
Ziats 7–24–88 5–24–82 No. 344
Lugo 7–24–88 – –83 No. 345
Anthony’s first formal notice of the R & R warehouse
closing was through a notice posted that indicated his job
would be terminated. At that time they (R & R) had said he
would not be going over (to Riser). Anthony never made an
argument to R & R, or to Local 400, that he had some (con-
tract) right to become employed by some other company
(Riser) in the food business in Cleveland. Anthony was not
wholly persuasive in asserting he was then more worried
about finding another job. In any event, Anthony did not file
a grievance with Local 400 (or R & R), over his then im-
pending release.
Anthony later learned (I find) in July there was a chance
for him to be employed at Riser. Jobs had opened up for An-
thony (and others), when certain more senior R & R employ-
ees went into management, or elected to take the offered
buyout (i.e., severance pay). Perishables General Manager
DiMauro called a meeting of Anthony and other employees
and told them that there were openings for four more guys
at the Riser warehouse; and, if they wanted them, they could
have them. Riser in that manner hired Anthony (and, seem-
ingly Hallman, Ziats, and Lugo) on July 24. Riser hired An-
thony on third shift where Anthony still works. On transfer-
ring their membership from Local 400 to Local 507, An-
thony (and the other three named warehousemen) received a
copy of Local 507’s Fisher/Heritage contract, that was then
applicable to all Riser warehousemen.
4. Management and union statements to employees, bid
losses, and grievances filed
The record reveals that Respondents Riser and Local 507
continued at loggerheads through November, over whether
former R & R employees should be dovetailed or endtailed
into the Riser (driver, and warehousemen) plant unit seniority
lists maintained at Richmond Road. In that regard, Lugo tes-
tified, and it appears uncontested, that the period just before
Thanksgiving is the busiest time of the year for this particu-
lar food industry.
a. Bids, job losses, and meetings
In October, warehouseman Schreiber bid on a tow motor
job. Schreiber was awarded the job; and he worked that job
for about 4 weeks. In his third week on the job, Schreiber
heard rumors that the Union wanted to take them (former R
& R employees) out of their dovetailed seniority. Schreiber
spoke to his Supervisor S. Rego. S. Rego said the Union had
wanted the Company (Riser) to give preference to Local 507
members; but the Company was standing by their position;
and (R & R) employees would remain in dovetail. However,
Schreiber related Supervisor S. Rego and Perishables General
Manager DiMauro later told Schreiber he was going to lose
his preferred day-shift job; and, Schreiber did subsequently
lose it, on November 20.
651RISER FOODS
Warehouseman Gibboney began his work at Riser with an
assignment of an 8 p.m. to 4:30 a.m shift. Around the begin-
ning of November Gibboney bid successfully on an 8:30
a.m. shift; and he held that job for several weeks. One
evening Gibboney’s supervisor informed Gibboney that he
was to report back to his old job the following day. At the
time there was no further discussion.
Anthony relates that assuming at the time that their R &
R time counted, Hallman and Lugo had previously filed cer-
tain job bids, and been awarded them. Lugo more defini-
tively confirmed a shift bid of 11 a.m. to 7:30 p.m. had been
posted, which was favorable to him. Lugo bid on it; and, he
was initially awarded it. Lugo worked a day on that shift in
the following week when he was taken off of it on the same
day. Lugo has testified that Riser Supervisor Ray Ziedonis
told Lugo (and Hallman) that the Union came bitching to the
office about ‘‘us’’ getting the bid(s); that they had lost the
bid(s); and, they had to go back on nights, starting at 7 p.m.
Anthony confirms that Hallman and Lugo were taken off the
bids that day, after having been awarded the bids for but 1
day. Anthony adds some Fazio (Fisher) guys had filed a
grievance (as did some other Local 507 members) because
they were not awarded the bid.
Driver Pusateri recalled that about the beginning of No-
vember, a Riser dispatcher (unnamed) said that Pusateri was
not to worry about bidding, because they would not be bid-
ding any more with their (R & R) seniority; that their dove-
tail was being taken away from them; and that they would
be on the bottom of the list with our (sic, out) dovetail.
Driver McCauley recalled on November 15, McCauley
spoke to Transportation Manager Degiatano about the
rumor(s) McCauley had heard. McCauley told Degiatano he
had heard a lot of rumors, and asked Degiatano to verify
them. At this time, Degiatano said there was going to be a
change in seniority listing; McCauley and other former R &
R drivers were going to be taken out of their seniority and
put at the bottom of the list; and, the Company (Riser) was
being forced to take it (their dovetailed R & R time) out of
seniority.
Pusateri went to Transportation Manager Degiatano, and
asked what was going on. Degiatano said he was just doing
what the Company told him. Pusateri called President Rini
and asked to meet with him or A. Rego. Pusateri subse-
quently met with C. Rini and A. Rego.
At this meeting Rini said that he was sorry it happened;
that this is not the way it is suppossed to be; and, they had
to be taken out of their dovetail because Local 507 had
threatened a work slow down if the R & R people stay in
their dovetail seniority. Pusateri then asked how can this be;
this was an agreement that we were dovetailed in; I have
been dovetailed for the last 5 months; all of a sudden I am
not dovetailed; and, how can you let them do this to us. A.
Rego then said let me call our lawyer. A. Rego did so; and
he then put counsel Duvin on a speaker. Pusateri repeated
(his questions) what was happening, and why; and Duvin re-
plied that they were still fighting to get this straightened out.
However, Pusateri relates, when Pusateri then asked what
were their chances, Pusateri received (essentially) a
noncommital answer.
Driver Genco attended more than one such meeting with
Riser officials in November. Thus Genco recalled he and
drivers Bossard and McCauley initially met with Garson in
his office. Garson told them that the rumors they heard about
being dropped to the bottom of the seniority list were true.
Garson said they had to do it because they were directed to
by the Union.
Genco next met (alone) with A. Rego and Garson in A.
Rego’s office. Genco asked A. Rego why this happened; and,
why they were being dropped to the bottom of the seniority
list. A. Rego said, ‘‘They had no choice, because an agree-
ment [I find the consolidation agreement draft] was not re-
ceived.’’ Though somewhat hesitantly at first, Genco recalled
A. Rego said (essentially) there was an agreement with
Friedman, with R & R guys to be dovetailed, and Local 507
was reneging on that agreement; and, that Local 507 threat-
ened to slow down the (Riser) facility, if we (former R & R
employees) were not removed (from dovetailed position) and
put on the bottom of the (then) combined Fisher-Seaway
dovetailed driver list. Driver Genco was then offered options
to:
1. Continue to work at Richmond Road at the bottom
of the list, and work 3–4 days a week.
2. Move to Seaway (the Aurora Road warehouse) at
the bottom of the board.
3. Take the severance pay package.
Genco said that he would have to think about it. The par-
ties stipulated that driver Rease who did not testify, exercised
the option to work at Seaway’s (Aurora Road) warehouse the
end of November, where Rease has worked since.
After thinking more about his options (and interimly talk-
ing to the Union below), driver Genco had another meeting
with President C. Rini and A. Rego in Rini’s office. Rini re-
iterated there was an agreement with Local 507; (but) when
they sent an agreement to the Union to be signed, Friedman
ignored it; and, it was not returned signed. Genco has ac-
knowledged he was not told that (nonreturn) had happened
in May, even before he was transferred.
After all his meetings with the Ccmpany (and the Union)
Genco still could not understand why their seniority was
being taken away, because Genco was told by people he
trusted that there was an agreement; and, for whatever rea-
son, that agreement was not signed, sealed, and delivered,
and his seniority was taken away. Genco also asserts (he
knew) that when he came over in early July, he was dove-
tailed in the Local 407 (Fisher) driver unit; and, that the
house (Fisher) contract provided for endtail; and (he knew)
if he was not to be dovetailed, he should be endtailed after
the Local 407 (drivers), because he had arrived there before
any of the Seaway drivers.
b. Initial employee discussions with the Union
Anthony recalls that in the evening of November 11, ware-
housemen Anthony, Hallman, and Lugo, and some old
‘‘Fazio’’ guys (stipulated to be generally former Fisher ware-
housemen, and thus employees who had more recently been
represented by Local 507 under the terms of the Fisher con-
tract), were in the lunchroom when Local 507 Business
Agents Steve French and Rudy Nativio walked in.
Genco had confirming recollection that sometime in No-
vember, some business agents showed up, including French
and Nativio. The business agents first met with the drivers
in the upstairs drivers’ waiting room. On that occasion,
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Genco heard driver McCauley or Bossard say, this was not
going to be like another 40th Street, without (initially) elicit-
ing a reply from French or Nativio. Genco then heard it said,
not by French or Nativio, and more probably still by
McCauley or Bossard, that when Fisher operated a ware-
house in downtown Cleveland at 40th Street (represented by
Local 400) and members of Local 400 moved to Richmond
Road, Local 507 became the unit bargaining (agent), and the
40th Street members of Local 400 were out of a job. Genco
relates, notably without contradiction, French said, ‘‘they
[Local 507] didn’t want to open up dovetailing former Local
400 members into their seniority list. (However, the point
then being made reasonably appears as one of not being in-
consistent when an operation at one location was shut down,
and employees formerly working there came to Richmond
Road to do the work.)
E.g., Nativio relates that Fisher (Fazio) had a warehouse
facility at Woodlawn Avenue. Fisher later built a freezer at
Fisher’s Richmond Road (warehouse) operation. Fisher then
closed the Woodlawn facility. Local 507 had the (warehouse)
contract at Richmond Road. Nativio recounts when Fisher
hired some of Fazio employees at Richmond Road, they
went to the bottom of the list, like everybody has always
done. According to Nativio, the only difference here is that
Local 407 and Local 507 agreed to dovetail their drivers.
Genco recalls they next met that same day in the drivers
room. (Genco may have confused this recollection with a
meeting recalled by other drivers as occurring later, below.)
In any event Genco’s recollection is that Genco and
McCauley were present. French said, ‘‘Local 507 didn’t
want us (R & R employees there to begin with because he
knew we would be a thorn in their side’’; and, he said, ‘‘The
Union controls the seniority list.’’ On cross-examination
Genco also acknowledged French said, ‘‘Local 507 had
never agreed to have R & R employees dovetailed’’; and he
believed French had also said, ‘‘It was the Union’s position
that R & R employees were not entitled to dovetailed senior-
ity.’’
However, Genco also related French said, ‘‘Now that we
are on the bottom of the seniority list, the Company should
just go ahead and get rid of us because we’d be out of their
hair.’’ (This statement is not alleged as an independent
threat; and it is not corroborated by anyone.) Genco went on
to explain French meant they did not want us, though Genco
then did not know if it was because of dovetail, or why. In
this area, Genco’s assertions proved too loose, if not con-
fused, and unreliable where not corroborated. While Genco
relates French said, ‘‘Former R & R drivers were not to be
dovetailed, Genco asserted, he didn’t know why; but thought
the Union’s position was that they just didn’t want them over
there, period; and, if all of them were gone they would be
happy’’; only later to acknowledge Genco had made an as-
sumption that they did not want them dovetailed and he
didn’t know why.
According to Anthony’s further account (credited as it is
here marshalled) Hallman asked French why he was not
awarded the bid; and, the Union (French) said, that Hallman
and Lugo could not have those jobs because they did not
have a year in (as is required to bid on a job); and, they
were (both) considered as new employees. Hallman asked
why he was stripped of his (R & R) time and/or why they
did not have their (R & R) seniority. From credited cross-
examination of Anthony (I find) French (centrally) re-
sponded, ‘‘Local 507 took the position, and had always
taken the position that you were not entitled to R & R ware-
house time for seniority purposes; and, that your seniority
would not be dovetailed.’’
Anthony recounts French did not then explain Local 507
(former Fisher) employees would be displaced by them (the
old R & R warehouse employees) if they were allowed that
time; nor say the reason was so Local 507 members at the
original (Fisher) shop would not be displaced. However, An-
thony thought French meant that they did not get the jobs,
because the old Fazio (former Fisher) warehouse people
would be put out of (lose) bids. Anthony acknowledged
French said, ‘‘It (essentially, an endtail of new hires) was al-
ways Local 507’s policy.’’
Initially Anthony related that French also said that we
must be good employees, or we must be in bed with Chuck
Rini, because they almost closed the place down to get us
over there (sic). In later examination, Anthony’s recollection
varied on stated purpose (but seemingly then apearing the
more consistent) in relating we must be either good workers
or in bed with Chuck Rini, because they almost closed the
place down over us. However, Respondent Union has further
established that in a prior affidavit, Anthony had made no
reference to the statement made of being in bed with Rini,
in recording only, ‘‘And, I was told we must [be] good
workers because the company came very close to closing this
place down over us.’’ In this instance I do not find Antho-
ny’s vacillating recollections as persuasive; and I shall not
rely on them to the extent not corroborated by others. An-
thony also recalled French said, ‘‘We were lucky that we
were allowed to come over; and, Harold Friedman didn’t
want us there in the first place.’’
As Hallman had more seniority than Anthony, Anthony as-
serts he knew his own seniority was also affected. Anthony
asked French, why he was stripped of his time, and about
vacations; and, Anthony got the same answer. Although An-
thony has not amplified the response given as to vacations,
Director of Human Resources Garson otherwise testified that
the former R & R employees receive credit for their R &
R time where it does not effect the other unit employees, i.e.,
in regard to amount of vacation earned (and similarly, on the
other benefits), but they do not receive such seniority consid-
erations on preferred time for vacation (or layoff, or bid pref-
erence). After the meeting, some (named) Fazio guys came
up to Anthony and apologized for having filed the griev-
ances; but they added, they were protecting their jobs.
c. The (former R & R) employees’ grievances
On November 19, warehouseman Gibboney file a griev-
ance for the loss of his job bid and plant seniority. Gibboney
was not then aware if others had filed a grievance. Director
of Human Resources Garson’s response to Gibboney’s griev-
ance filed was, ‘‘This decision was made by Teamsters
Union Local 507.’’
In regard to this grievance, at one point Gibboney asserts
his dispute was not with the Union, it was with the loss of
his seniority. Gibboney was not sure why he lost it, only,
that the Company said they lost it because the Union said
we would. Although Gibboney has acknowledged his aware-
ness that grievance procedure was for contractual disputes
with the Employer, and that the Company responds within a
653RISER FOODS
set period, Gibboney has also asserted that he had a separate
dispute with Local 507 and, he filed the grievance with the
Union to find out why he lost his seniority. Gibboney then
acceded that he did not believe that you address a dispute
with the Union through grievance procedure; but only then
to assert he thought the Union’s nonanswer, was an answer,
namely that they had nothing to say to him about it.
Gibboney did not discuss it with, or file a grievance with
Local 400. Indeed Gibboney confirms no (former R & R)
employee witness testifying had personally filed a grievance
with Local 400, nor was he aware that any other (former R
& R) employee did.
Ziats asserted a belief the grievance filed was against the
Union. Ziats also acknowledged that under normal cir-
cumstances it is not; and, when he has a dispute with the
Union he does not file under the contract. Ziats recounts he
has worked with the unions all his life; and, he did it this
time because it was the only way to go.
Anthony’s recollection was that he filed a grievance before
talking to the Company. Anthony filed his grievance dated
November 20 (assertedly) because he was told on November
11 he was stripped of his company seniority. Though con-
ceding he was already aware Local 507’s position was he
was not entitled to R & R time being dovetailed, Anthony
asserts he nonetheless filed the grievance before taIking to
the Company (Rini, Rego, and Garson, below) because they
(the former R & R employees) were under the impression
they had their seniority, and had lost it; they wanted an ex-
planation beyond what French had said; and, there was noth-
ing else they could do. They were supposed to receive an an-
swer in 7 days. On November 25, he received the Compa-
ny’s answer, which (again) was, ‘‘This decision was made by
Teamsters Union Local 507.’’ Anthony states he received
nothing from the Union thereafter.
On Novmber 21, Schreiber filed a grievance on his job
loss. On November 25, Garson answered Schreiber’s griev-
ance, ‘‘This decision was made by Teamsters Union Local
507.’’ Schreiber received no reply from the Union; and, he
further asserts, he was never told by the Union the grievance
was denied.
Nativio relates credibly he has handled a lot of grievances
(in 17 years) and he is familiar with the grievance procedure.
The procedure is a steward signs on receipt of a grievance.
The steward is not supposed to refuse to accept a grievance;
and, if a steward does, the employee is to go to another
steward, or a business agent. The steward sends a copy of
the grievance on to the Company, which then has 7 days to
answer. The individual can accept the Company’s answer, or
he can contact a business agent to discuss it; but the em-
ployee-member must notify the Union what the Company’s
answer was, if the employee wants to pursue it to the next
step. I fully credit Nativio’s above account of the applicable
grievance procedure. Nativio testified convincingly on the
practical side of such grievance processing, in that Local 507
has some 10,000 members; and there are many (grievance)
transactions each day.
d. Riser officials’ meetings with warehouse employees
Riser President Rini, and other Riser executives Rego and
Garson met with former R & R employees. Riser officials
(essentially) informed the 15 above-named employees, albeit
along line of insidemen (warehousemen) unit, or small driver
groups, that they were to lose their R & R dovetailed senior-
ity because Local 507 had threatened a slow down, or to shut
the Company (Riser) down.
Duvin asserts, that though Riser had resisted all lesser
union pressures for months, Riser officials could not risk a
strike at that time, which Riser felt would be fatal to its sur-
vival, and so it acceded to Local 507’s demand that the se-
niority of the former R & R employees be endtailed at Rich-
mond Road. Duvin volunteered he urged the Company to
make a stand, but he asserts the Company just did not feel
they could. They believed the (Union’s) message was seri-
ous; that there could have been a stoppage, but more likely,
the kind of harassment that interferes with distribution in a
timely and efficient manner; and, the Company decided,
whether by a weariness or intimidation, they just could not
win the struggle; and thus, they lost it.
Anthony recalls that shortly before Thanksgiving, about
seven warehousemen (I find) specifically (Anthony, Camella,
Gibboney, Hallman, Lugo, Schreiber, and Ziats) met with
President Rini, cochairman A. Rego (and Garson and
DiMauro). Anthony recalled Rego did most of the taIking;
and, Rego said, ‘‘They had tried to get us our seniority, but
the Union had threatened to close them down if they [the
former R & R employees] were granted (R & R) seniority.’’
Schreiber confirmed that such meeting was held in Riser’s
conference room; that all the insidemen were there; and, that
there were no drivers present. Schreiber also confirmed Rego
spoke to them of the problems he was having with the
Union.
Anthony recalled that Rini mostly apologized. Rini said he
thought they had an agreement on keeing their seniority; he
was a man of his word, that is how he does business; and,
he was sorry he could not keep his word to us because the
other party, naming Friedman, did not keep theirs. Both Rini
and Rego said they would keep the employees’ severance
package open. They could have it, if they decided to leave,
if we wanted to get out. Anthony did not recall any discus-
sion of other options (and it appears there were none for
warehousemen). After some apparent initial confusion with
an employer option presentment at time of closure, Lugo
confirmed that in this meeting, since he was not getting
dovetailed seniority, Lugo could opt for a seniority buyout
in severance pay; and he also (then) did not recall any other
options discussed.
Schreiber corroborated that Rini said they thought they had
an agreement with the Union involving our seniority but it
fell apart. Rini said he had tried to call Harold Friedman, but
he would not return or answer his calls; and, Rini said it
goes against everything he was brought up with. Rini then
said, he met with a Local 507 business agent and had asked
about the agreement; and, the business agent more or less
laughed in his face. Notably, Schreiber recalled, Rini said the
Union wanted to take us out of our dovetail; and Rini said
they were behind us in anything we could do.
In confirming this meeting, Lugo recalled Rini said they
had an ageement with the Union (without Rini naming either
Locals 507 or 400); and, they turned the other way. Rini was
apologizing that they did not dovetail with the rest of the
warehousemen when Rini had told them they would because
there was an agreement. Rini said he could not do anything
for them; and, if he did try to help, the Union would threaten
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to shut down the place, close down, or slow down, if he kept
them dovetailed.
Warehouseman Ziats also recalled that he was present at
the meeting held in the front office with Messrs C. Rini and
A. Rego that was held shortly before Thanksgiving. Ziats
confirmed Rini apologized for the events that had taken
place. Rini said he was very sorry; he thought he had an
agreement with the Union (specifying Local 507, and men-
tioning Friedman) concerning seniority, but they had to go
along with it (endtail) because the Union was threatening to
shut them down if they reinstated our seniority. Rini said he
did not feel he could risk the Company. He said he could
not afford to have the Union come in and slow him down,
or shut him down at that point. They said they would help
us any way they could. Ziats confirmed (essentially) they
said we could accept the buy out; or, we could stay at Riser.
Ziats recalled they did say that it was Local 507’s position
that Local 507 had never agreed to dovetail the seniority of
the former R & R employees.
Warehouseman Gibboney recalls they said the Company
had an agreement with the Union; something happened, or
went wrong with the agreement; and, the Union threatened
to slow down work, if they did not comply. On cross-exam-
ination, Gibboney initially stated, ‘‘Rini didn’t indicate
whether or not Rini personally had that agreement, or had
obtained it through counsel,’’ though in further examination
Gibboney then said, he did not recall either way. Contrary
to Ziats, Gibboney did not recall them say in this meeting
Local 507’s position was that you (former R & R employees)
were not entitled to dovetailed seniority.
e. Riser’s meetings with drivers
Bossard recalled shortly before Thanksgiving, Riser Presi-
dent C. Rini, (cochairman) A. Rego, and Garson, director of
personnel, called drivers Bossard and McCauley to a meet-
ing. Rego said he was there to offer them some different op-
tions. Rini said, he thought he had a deal with the union
(sic), that we were supposed to be dovetailed with our se-
niority. Local 507 put pressure on Rini; and, Local 507 told
Rini they were going to slow the joint down. Rini then told
Bossard he cannot afford a slowdown, its just before the
holidays; and he said, ‘‘I’m sorry gentlemen.’’ Bossard also
recalled that Rini said, ‘‘We’re still behind you a hundred
percent. We’re going to work with you. So all we can do
at the present time is give you three options.’’ (McCauley
confirmed, but recalled Rego presented the options.) In any
event, Riser officials in that essential manner offered Bossard
and McCauley, and (I find in such small groups) each former
R & R driver three options, namely:
(1) A transfer to the food service operation (formerly
Seaway’s) on Aurora Road, but with endtailed senior-
ity.
(2) A buy-out (the R & R severance pay).
(3) Continued employ at Richmond Road, but with
endtailed seniority.
None included dovetailed R & R plant seniority. Bossard
recalled Rini said they could take a buyout anytime they
wanted. Bossard said he had a written agreement that he was
supposed to be dovetailed; and why should he go to Seaway
where he had no guarantee. Bossard elected to stay as a driv-
er at Riser’s Richmond Road warehouse.
McCauley told the Riser officials he did not understand
the reasoning behind taking them out of seniority. He
thought we had an agreement with the Union (Local 400)
and the Company; we were already dovetailed; and, he could
not understand why they were taking him out of his senior-
ity. McCauley recalled Riser President Rini then said, ‘‘The
company had pushed this thing as far as they could; they had
tried to do right by former R & R employees; but they were
being threatened with a slowdown at the warehouse; and the
company was on too shaky financial grounds to push it any
farther.’’
McCauley then told Rego he was working for the (Reni
and Rego) corporate stores, servicing the same stores, doing
the same identical work for Riser that he had done for R &
R; he did not feel it was to his advantage to transfer any-
where; and, he felt there was a legal agreement between the
former R & R people and the Company.
f. The grievances filed and Riser’s singular response
Each of these 15 former R & R employees subsequently
had their seniority at Richmond Road endtailed in November,
though it had been dovetailed by Riser since the employees’
report for work earlier in June or July up until then. On
weight of evidence I find (below) French made his demand
on Rini on Friday, November 11, accompanied by threat of
shutdown or slowdown (probably shutdown, and then dis-
cerned by the Employer as more likely to involve slow-
down); and, that the seniority lists were revised a week later,
on November 18.
Certain drivers and warehousemen promptly filed griev-
ances over their lost dovetail seniority, or, its effects (job/bid
losses). Thus, on November 19 warehouseman Gibboney
filed a grievance over a job bid that he lost, as well as his
lost (dovetailed) plant seniority. On November 20 ware-
houseman Lugo filed a grievance over a job bid he lost; and,
on the same day warehousemen Anthony and Ziats filed
(general) grievance over being stripped of their (dovetailed)
plant seniority. Warehouseman Schreiber, who had success-
fully bid on and been promoted to a day-shift job on October
30 only to be notified on November 20 that he had lost his
plant seniority and was being put back on his former job,
filed a grievance thereon on November 21.
Driver Pusateri testified generally that new bids took effect
the end of November. On November 22, 1988, drivers
Bossard, Genco, McCauley, Pusateri, and Rease jointly filed
a 6-page grievance over the loss of their dovetailed seniority.
That drivers’ grievance provides, definitively:
On June 3, 1988, the Reni–Rego Warehouse Com-
pany entered into an agreement with Teamsters Local
400 to revoke their legal responsibility to their union
contract with that local. A copy of said agreement is at-
tached. According to page 2 articles 5 and 6, the agree-
ment hinges on the 15 most senior employees at the fa-
cility being dovetailed into the new facility retaining
the company seniority date [end p. 1].
. . . .
to determine relative seniority in the bargaining unit. In
June the former Local 400 people were brought into the
new facility as the first Local 507 drivers and the first
655RISER FOODS
group of 507 warehousemen to be brought into the fa-
cility from another location. They were dovetailed into
the former Heritage workers there by company senior-
ity. The former Heritage people consisted of 407 driv-
ers and 507 warehousemen. [End p. 2.]
. . . .
Beginning in June in an on going process the former
Seaway warehousemen Lccal 507 [sic] were periodi-
cally brought over into the new facility and dovetailed
in. Beginning in Aug. [sic] the former Seaway drivers
Local 507 [sic] were brought over in a similar manner
and dovetailed in. As of November 21, 1988, the
former Local 400—now 507 drivers and warehousemen
have been dropped to the bottom of the seniority board,
. . . . [End p. 3.]
. . . .
while the former Heritage and Seaway people remain in
full dovetailed seniority. The company has unfairly
taken their [sic] seniority rights from the former Local
400 now Local 507 men and have violated and dis-
regarded a legal union agreement. We are asking Local
507 as our current bargaining unit to encourage the
company to abide by their agreement and reinstate our
. . . . [End p. 4.]
. . . .
seniority. If the company will not reinstate the dove-
tailed seniority system that we had been working under
from June 1988 til now, then we sight [sic, cite] Article
V paragraphs 1 & 2 of the Heritage Wholesaler’s agree-
ment and demand that we recieve [sic] our plant senior-
ity under the contract agreement of our current bargain-
ing unit and that this facility be forced to put all the
men in it under plant seniority [end p. 5.]
as well.
By cover letter dated November 25, Garson, as (clearly)
then Riser’s director of human resources, replied to the mul-
tiple driver grievance filed, ‘‘This decision was made by
Teamsters Union Local 507.’’ The Union did not formally
respond.
In regard to the above grievance to which McCauley was
signatory, and which referred to a contractual right,
McCauley specifically acknowledged that he there had re-
ferred to the closing agreement between R & R and Local
407. Genco confirms the answer to the grievance was, that
was what the Union wanted; and Genco did not thereafter get
an answer from Local 507. Though Genco’s recollection was
that he got a copy of the contract as the Union’s response,
others have testified that they got a copy of that contract at
Local 507’s hall, on the occassion of their transferring their
membership from Local 400 to Local 507. Genco under-
stands Local 507’s position was, he never should have had
it.
Diver Snodgrass was on vacation over Thanksgiving. On
his return Riser’s dispatcher told Snodgrass that he would
not be able to bid (meaning only that he was not high
enough in seniority to do so); and, the dispatcher also said,
that they would be going down to the bottom of the list.
Snodgrass (independently) filed a grievance assertedly pro-
testing both the Company and the Union to get his seniority
back. Notably none of the (former) R & R driver employees
filed a grievance against Local 400; nor were they aware of
any other R & R employee filing a grievance against Local
400. Snodgrass acknowledged (some) Seaway drivers were
also not high enough to bid.
Snodgrass had an individual meeting with C. Rini and A.
Rego the end of November. Snodgrasss recalled Rini said:
‘‘Local 507 was forcing them [Riser] to put us [former R &
R employees] on the bottom, because they threatened a work
slow down; that they didn’t want to do it; but, he [Rini] had
fought as hard and as long as he could; and, Rini felt that
at that time he just couldn’t go on to fight them no [sic]
more.’’ Rini said, he would continue to fight for us, but at
this time, they would have to go to the bottom of the list.
Snodgrass recalled that A. Rego also said the Union was
threatening a work slow down; and, at that time the Com-
pany could not afford a slow down.
g. Other conversations with the Union
After the grievances were filed, Bossard recalled an occa-
sion when he had asked Business Agent French why he wait-
ed so long, 6 months, to pull them out of seniority. French
said, he’s been telling the Company right along that we had
to come out of our seniority, only this time he said, I had
to get tough and demand it. French told Bossard he went up
and told (President) Rini on a Friday (and, I find on weight
of mutually consistent evidence, most likely on November
11), either you pull them out of their dovetailed seniority and
put them at the bottom, or I’m closing the place down.
Bossard acknowledged on cross-examination that French
also told Bossard, from the beginning Local 507’s position
was you (the former R & R employees) were not entitled to
dovetailed seniority rights. (Bossard’s undenied testimony of
these certain statements French made to him in a direct con-
versation with French is credited.) Neither Bossard,
Schreiber, Lugo, or any other employee ever claimed or said
that a Local 507 agent or employee ever said the R & R
drivers were entitled to have dovetailed seniority.
Bossard, McCauley, and Genco were working one evening
at the warehouse shortly before Christmas, when some 8-10
business agents showed up. There were a lot of grievances
filed at this time; and, the business agents were there fre-
quently. Bossard had to leave on a delivery. Some of the
business agents, materially French and Nativio, were still
there on Bossard’s return.
As the business agents were leaving from an upstairs driv-
ers’ waiting room, McCauley introduced himself to Business
Agent French, and McCauley asked French if McCauley
could talk to him. French agreed; and they went to the down-
stairs drivers’ lockerroom. Nativio followed. Other drivers
arrived, including Genco. Though McCauley posed a ques-
tion to French, Nativio answered. McCauley had asked
(French) for the reasoning for specifically McCauley, and the
other R & R drivers being taken out of their seniority.
McCauley recounts Nativio gave a history lesson on Fisher
Foods, how it started as a bakery, and was expanded into a
warehouse; and, how, on each time people came in, in merg-
er capacities, they went to the bottom of the seniority list.
When he finished, Nativio asked if McCauley understood.
McCauley said, I understand you always put people to the
bottom of the board.
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Then McCauley asked why his personal seniority rights at
the bottom of the board were violated when the Seaway driv-
ers came over, because, if seniority was that way (endtailed)
he should have plant seniority rights over all the Seaway
drivers, because he came over in July, and the Seaway driv-
ers did not start to come over until mid-August, and the final
ones did not come until late December. (It is reasonably
clear McCauley here has embellished somewhat, by includ-
ing subsequent events.) In any event, Nativio replied (only)
there was a special agreement between Locals 407 and 507
for a seniority dovetail, and we (former R & R employees)
were not included in that agreement.
McCauley later asked French about company seniority; re-
lating he had been a member of a (Teamsters) union since
1980; and he wanted to know when company seniority ap-
plied. McCauley has French reply, company seniority means
nothing; all seniority comes from the Union; the Union will
dictate seniority; and, since McCauley was only in Local 507
from July, and the other R & R drivers since June, that was
where their seniority would lie.
On Bossard’s return, he saw Nativio talking to drivers
McCauley and Genco. Bossard introduced himself. Nativio
said, ‘‘Well we have another R & R man here.’’ Bossard re-
plied, ‘‘No, you’ve got a Riser employee here.’’ Nativio said
he ‘‘heard we were going to the Labor Board and we had
an attorney.’’ Bossard did not reply.
However, later in that conversation Bossard asked Nativio,
how come they took us out of our dovetailed seniority.
Nativio replied, because in Local 507 any new men that
come into our Union must go to the bottom. Bossard said
he did not think that was true; adding, if he recollected cor-
rectly, back in 1979, Seaway Foods decertified Local 400
and went into Local 507 with their seniority and pension.
Nativio said that was a different case, a different matter.
Still later, Bossard recited (questioningly) to Nativio that:
Local 407 Teamsters is here; then comes Local 400 Team-
sters, second; then Local 507 Teamsters third; and we are
dovetailed from day one for 6 months, and all of a sudden
you take us out of number 2 and put us at the bottom?
Bossard relates Nativio then said well, first of all you guys
weren’t even supposd to be over here in the first place, and
we knew that we were going to have a problem with you
guys when you came over here from Local 400.
Lugo similarly recalled that in the latter part of November,
while Lugo, Hollman, and Anthony were upstairs on a break,
French was talking to employees; and French said, there was
only supposed to be five members of (Local) 400 that come
from R & R, and, it turned into 15 employees; and, we were
lucky to be there. (Local 507 operates a (described) exclusive
hiring hall employment source, but with contractual provi-
sions that an employer may hire and/or refer applicants who
are then given preference in employment.)
Pusateri recalled that on December 9, a Seaway driver was
bitching in the dispatch room about the loss of a personal
holiday; and, the driver said he had called French or another
business agent; and, they were going to come out and talk
about it. Pusateri recalled that about 10 business agents of
Local 507 later came out; and, they essentially distributed
Fisher-Local 507 contracts (presumably the Fisher-Local 507
warehousemen contract with Seaway driver terms insert).
Pusateri recalled Nativio talked about the holiday.
Pusateri asked Nativio how come we got taken out of our
seniority. On direct, Pusateri related Nativio said you (R &
R) people were not even supposed to come out; and, we did
not even want you out. Pusateri said what do you mean, we
had an agreement we were going to be dovetailed, and we
have been dovetailed for the last 5 months. How come all
of a sudden we are not dovetailed? On cross-examination
Pusateri acknowledged they (French and/or Nativio) said
they would not give them (former R & R employees) dove-
tailed seniority, as they did not agree on it. Pusateri also
asked about plant (Riser) seniority over the Seaway drivers
that came in after they were there.
h. Effects on employees of the loss of their dovetailed
R & R seniority
Snodgrass, with number 1 seniority amongst former R &
R drivers, lost his 4:30 a.m. start. Pusateri lost his 5 a.m.
start; and, he (and others) started on call. Snodgrass recalled
being laid off for 2 weeks in May. Though Pusateri con-
firmed he was laid off for 2 weeks, he recalled it as 1 week
in April 1990, and 1 week in May 1990. Genco began work-
ing 2 3-day short weeks; and he was also laid off, once for
3 weeks, and another time for 4 weeks. Genco also relates
that he lost certain benefits for his family. Whereas Genco
initially had a regular starting time and choice of destination,
now he has no control over his hours of work, and no job
security.
On March 24, 1989, warehouseman Schreiber filed the in-
stant charges, which have lead to the present complaint
issuance on July 18, 1990, covering all the 15 former R &
R drivers and warehousemen as alleged discriminatees. Com-
plaint specifically alleges and the General Counsel has cen-
trally contended that on or about November 15 Respondent
Local 507 unlawfully demanded Riser endtail the seniority of
employees who had been previously dovetailed by Riser, be-
cause they became members of Respondent Union at a later
date than the other Riser employees represented by Local
507; and that, on or about November 22 that Respondent
Riser unlawfully endtailed their seniority.
Contentions, analysis, conclusions, and findings
The parties appear in general agreement on the applicabil-
ity here of the broad obligatory collective-bargaining prin-
ciples stated in Vaca v. Sipes, 386 U.S. 171, 177 (1967),
that:
[A]s the exclusive bargaining representative of the em-
ployees in [the] bargaining unit, the Union had a statu-
tory duty fairly to represent all of those employees,
both in its collective bargaining with (the employer),
see Ford Motor Co. v. Huffman, 345 U.S. 330; Syres
v. Oil Workers International Union, 350 U.S. 892, and
in its enforcement of the resulting collective bargaining
agreement, see Humphrey v. Moore, 375 U.S. 335. The
statutory duty of fair representation was developed over
20 years ago in a series of cases involving alleged ra-
cial discrimination by unions certified as exclusive bar-
gaining representatives under the Railway Labor Act,
see Steele v. Louisville & N. R. Co., 323 U.S. 192;
Tunstall v. Brotherhood of Locomotive Firemen, 323
U.S. 210, and was soon extended to unions certified
under the N.L.R.A., see Ford Motor Co. v. Huffman,
657RISER FOODS
supra. Under this doctrine, the exclusive agent’s statu-
tory authority to represent all members of a designated
unit includes a statutory obligation to serve the interests
of all members without hostility or discrimination to-
ward any, to exercise its discretion with complete good
faith and honesty, and to avoid arbitrary conduct. Hum-
phrey v. Moore, 375 U.S., at 342.
A union’s breach of the duty of fair representation that it
owes to the employees in the unit it represents is an unfair
labor practice, Miranda Fuel Co., 140 NLRB 181 (1962),
enf. denied 326 F.2d 172 (2d Cir. 1963). The Board’s Mi-
randa Fuel holding was approved by the Supreme Court in
Vaca v. Sipes, 386 U.S. at 177–178 (sub silentio); and it has
since been regularly applied by lower courts and the Board,
e.g., cf. Letter Carriers Branch 6000 (Postal Service) v.
NLRB, 595 F.2d 808, 811 fn. 13 (D.C. Cir. 1979); and see
Teamsters Local 814 (Beth Israel Medical), 281 NLRB 1130,
1146 fn. 74 (1986), where the Board in referring to its land-
mark decision in Miranda Fuel, pertinently restated:
Viewing these mentioned obligations of a statutory rep-
resentative in the context of the ‘‘right’’ guaranteed
employees by Section 7 of the Act ‘‘to bargain collec-
tively through representatives of their own chosing’’ we
are of the opinion that Section 7 thus gives employees
the right to be free from unfair or irrelevant or invidi-
ous treatment by their exclusive bargaining agent in
matters affecting their employment. This right of em-
ployees is a statutory limitation on statutory bargaining
representatives, and we conclude that Section
8(b)(1)(A) of the Act accordingly prohibits labor orga-
nizations, when acting in a statutory representative ca-
pacity, from taking action against any employee upon
considerations or classifications which are irrelevant, in-
vidious, or unfair.
In regard to the Board’s above Miranda Fuel holding the
Supreme Court further observed, in Vaca v. Sipes, supra, 386
U.S. at 186:
The Board also held that an employer who ‘‘partici-
pates’’ in such arbitrary union conduct violates 8(a)(1),
and that the employer and the union may violate 8(a)(3)
and 8(b)(2) respectively, ‘‘when, for arbitrary or irrele-
vant reasons or upon the basis of an unfair classifica-
tion, the union attempts to cause or does cause an em-
ployer to derogate the employment status of an em-
ployee.’’
Respondent Local 507 advances the consideration that a
violation of fair representation requires that a union’s con-
duct towards a member be ‘‘arbitrary, discriminatory, or in
bad faith,’’ id. at 190; and, union stresses that it must be re-
membered that a bargaining agent’s duty to fairly represent
extends only to members of a designated unit represented by
that union. And so it is.
In Ford Motor Co. v. Huffman, 345 U.S. 331, 338–339
(1953), the Supreme Court said the bargaining representative,
‘‘is responsible to, and owes complete loyalty to, the inter-
ests of all it represents.’’ Of the bargaining agent’s exercise
of same, the Supreme Court then further pertinently said:
Inevitably differences arise in the manner and degree to
which the terms of any negotiated agreement affect in-
dividual employ and classes of employees. The mere
existence of such differences does not make them in-
valid. The complete satisfaction of all who are rep-
resented is hardly to be expected. A wide range of rea-
sonableness must be allowed a statutory bargaining
agent in serving the unit it represents, subject always to
complete good faith and honesty of purpose in the exer-
cise of its discretion.
Compromises on a temporary basis, with a view to
long range advantages, are natural incidents of negotia-
tion. Differences in wages, hours and conditions of em-
ployment reflect countless variables. Seniority rules
governing promotions, transfers, layoffs and similar
matters may, in the first instance, revolve around length
of competent service. Variations acceptable in the dis-
cretion of bargaining representatives, however, may
well include differences based upon such matters as the
unit within seniority is to be computed, the privileges
to which it shall relate, the nature of the work, the time
at which it is done, the fitness, ability or age of the em-
ployees, their family responsibilities, injuries received
in the course of service, and time or labor devoted to
related public service, whether civil or military, vol-
untary or involuntary. [Citations omitted.]
The Union centrally argues that it had an absolute duty to
the members it then represented, but only to them (the em-
ployees in the Fisher warehousemen unit and in the Seaway
drivers and warehousemen unit) to maintain their relative se-
niority, as it urges would Riser (seemingly even absent ear-
lier negotiations), upon Riser’s adoption of those agreements
through operation of successorship clauses, upon Riser’s ef-
fective merger and consolidation with Fisher, Seaway, Rini,
and Rego.
The Employer would first have it observed that in the cir-
cumstances of this type case, i.e., where the employees claim
that the Employer has acceded to union demands which un-
lawfully compromised their seniority rights, the 8(a)(3) claim
against the Employer is derivative of, and dependent upon,
the 8(b)(2) claim being brought against the union; and, the
Employer would note the court’s related holding in Barton
Brands Ltd. v. NLRB, 529 F.2d 793, 797 fn. 12 (7th Cir.
1976), ‘‘If the Union is not liable (the Company) cannot be
held liable since the § 8(a)(3) violation is predicated on an
8(b)(2) violation.’’
Contrary to further general urging by the Employer that
the General Counsel has launched a misguided and unprece-
dented assault upon a most basic right and responsibility of
a union, to advance and protect the interests of bargaining
units it represents, the General Counsel has readily acknowl-
edged that unions always have a legitimate interest in pro-
tecting the integrity and seniority of the bargaining unit they
represent; and, the General Counsel concedes specifically, a
union may ‘‘make seniority depend on the date of hire in the
unit and thus give inferior seniority ranking to employees
transferred from another unit.’’ Stage Employees ITSE Local
659 (MPO-TV of California), 197 NLRB 1187, 1189 (1972),
enfd. 477 F.2d 450 (D.C. Cir. 1973).
Moreover, the General Counsel has acknowledged that, ab-
sent evidence it was otherwise unlawfully motivated, an
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
endtail based on unit considerations has been variously
shown lawful, as in: Teamsters Local 229 (Associated Trans-
port), 185 NLRB 631 (1970) (where the Board has held that
a union lawfully endtailed transferred employees on the non-
capricious, and nonarbitrary consideration of protecting the
integrity of an existing unit); Simon Levi Co., 181 NLRB
826 (1970) (where a union similarly lawfully pressed endtail
of a group transferring locally from a distant warehouse clo-
sure, with colorable claim of an endtail requirement in a cur-
rent local contract’s language, though in the past the same
union had, with two other unions, then agreed to an overall
dovetail of all employees on the occasion when three of the
employer’s distant units, then separately represented, had
consolidated, and transferred to a new location, and were
there since represented by the same union); or, as in Inter-
national Harvester Co., 209 NLRB 357, 360 (1974) (where
a negotiated portable, or pegged seniority was limited to
those contractually vested with it, and resulted in the lawful
endtail of employees arriving outside the scope of the agree-
ment previously reached by all involved parties); or, as in
Teamsters Local 17 (Seferino F. Martinez), 198 NLRB 252
(1972) (where the contract, if considered on its face only,
lawfully endtailed employees added from outside a multiem-
ployer unit, but not where it was shown the union had
discriminatorily denied employment credit to certain returned
(formerly) striking unit employees because of their then lack
of union membership). The General Counsel concedes other
circumstances where a union may protect an existing unit, as
in Teamsters Local 896 (Anheuser-Busch), 296 NLRB 1025
(1989) (where a union had presented a ‘‘legitimate justifica-
tion’’ for invoking a contract which had then permitted an
employer’s temporary employees to be bumped off work by
laid-off workers of other companies having contracts with the
union).
Using the same above general criteria however, the Gen-
eral Counsel argues the Board has held endtail unlawful
where it was specifically accomplished for impermissible
reasons grounded in discriminatory union considerations, as
in: Red Ball Motor Freight, 157 NLRB 1237 (1966), enfd.
379 F.2d 137 (D.C. Cir. 1967) (where the endtail was shown
unlawfully accomplished to influence a representation elec-
tion at a newly merged consolidated unit); as in Teamsters
Local 42 (J. W. Daly), 281 NLRB 974, 976 (1986), enf. 825
F.2d 608 (1st Cir. 1987) (where a union entailed employees
of a newly merged site based on their lesser numbers and a
shorter length of union membership, and without other jus-
tification); Whiting Milk Corp., 145 NLRB 1035 (1964), enf.
denied 342 F.2d 8 (1st Cir. 1965) (where a union, party to
a multiemployer contract which contained a seniority dove-
tail provision applicable to any units of an acquired company
previously represented by the union, including units sepa-
rately thus represented, unlawfully endtailed employees from
a newly accreted unrepresented unit while dovetailing em-
ployees from newly acquired, previously, and separately rep-
resented units); or, Barton Brands, supra (where the court
ruled a union may not advocate endtail of a group of em-
ployees solely because it is politically expedient to do so),
and see Barton Brands, 228 NLRB 889, 892 (1977) (where
the Board, in adhering thereto, found the union failed to
show the requisite ‘‘objective justification for its conduct be-
yond that of placating the desires of the unit employees at
the expense of the minority’’).
Respondent Union would agree it is also unlawful to
endtail, where two unions negotiated an agreement with an
employer of the units they represented, that provided for one
of the unions to represent employees at a new location, and,
for dovetailed seniority of employees transferred there from
the second unit to do the second unit’s work, or on closure
of the second unit; where related dovetail seniority provi-
sions were entered in the subsequent collective-bargaining
agreements of each union; and, where the representing the
Union later reneged, and endtailed the previously transferred
(and initially dovetailed) employees in circumstances under
which the prior ageement called for dovetail, Ackley v. Team-
sters Local 337, 910 F.2d 1295 (6th Cir. 1990). Local 507
distinguishes Ackley on its contention (and successfully so on
my finding) that Local 507 had never agreed to dovetail the
seniority of R & R employees.
Both the Employer and the Union rely on the court’s hold-
ing in Schick v. NLRB, 409 F.2d 395 (7th Cir. 1969), which
sustained the Board’s action in upholding a recommended
dismissal of charges brought against an employer and two
unions, on basis the General Counsel had not established re-
spondents had unlawfully resolved a seniority list dispute in
the underlying case, Transport Motor Express, 162 NLRB
1023, 1027 (1967). There some members of two unions had
performed overlapping job assignments; but, when the em-
ployer later merged with another company, and a jurisdic-
tional conflict developed, the employer, the agrieved union,
and other involved union (apparently at least initially)
reached an agreement which eliminated positions in one
Local (unit) and endtailed members of that Local (unit) to
the agrieved union’s list, on a transfer under duress. The
court found the endtailing union ‘‘had a right, if not a duty
to its members, to protect the integrity of the unit it rep-
resented by placing the newly transferred drivers at the bot-
tom of the seniority list.’’ 409 F.2d at 399.
The Employer would also specially rely on the court’s
treatment therein of early Board view in Anheuser-Busch,
112 NLRB 686, 690 (1955), that the Act was designed to af-
ford groups of employees of an employer ‘‘the utmost free-
dom in their choice of a bargaining representative by permit-
ting them to select such representatives in separate bargain-
ing units’’ with asserted consequence that disparate treatment
among employees in different units along unit lines would
not by itself give rise to finding of discrimination; and, cor-
relatively, that large employers especially must be free to
draw distinctions along such unit lines.
The General Counsel has also centrally argued, that in pro-
tecting the integrity of a bargaining unit it represents, the
Union may endtail seniority on the basis of that unit, but not
on the basis of other union considerations (not limited to
union membership condition, but extending broadly to other
union representation considerations). The General Counsel
specifically contends that the Union’s and the Employer’s
defense that Local 507 owed a premerger duty of fair rep-
resentation to (certain) Fisher and (all) Seaway employees,
but not to R & R employees that it did not then represent,
does not withstand scrutiny, because (so the General Counsel
asserts, with reliance on the above cases) Local 507 could
not lawfully agree to a dovetail of seniority of its represented
former Seaway employees with Lccal 507’s represented Fish-
er warehousemen and its unrepresented Fisher drivers (who
are represented by Local 407), while maintaining a bargain-
659RISER FOODS
ing position (seemingly premerger, or otherwise) requiring
an endtail of seniority for all the (its) unrepresented former
R & R employees (represented by Local 400), simply because
Respondent Local 507 had represented the Seaway employ-
ees and not the R & R employees before the merger, and
(seemingly) because of claim that was the equivalent of ef-
fecting a seniority disparity based on membership in Local
507, as in Stage Employees IATSE Local 659, supra, 197
NLRB at 1189, where (new) employees with the right
(union) employment history, irrespective of relation to in-
volved unit scope consideration, were rewarded, and those
without such union employment history denied it.
In certain respects however, the General Counsel’s posi-
tion would appear to be overstated, or, as the Employer and
the Union have urged, stated in terms which appear unduly
restrictive of Local 507’s basic rights and obligations as the
exclusive collective-bargaining representative of all (includ-
ing Seaway) unit employees it presently represented. There
is no question Seaway was a major, if not the principal par-
ticipant in intended warehouse efficiencies to be accom-
plished by the planned merger and consolidations. As a di-
rect corollary, Seaway employees were to be principally and
directly affected (in planned transfers) by Riser’s (Fisher’s)
merger and principal operational consolidations with Seaway,
though Riser’s plan encompassed similar consolidation ac-
commodation with others, and Riser entertained some (fu-
ture) employ of others therefrom.
The related position variously expressed by the General
Counsel appears to be the limiting one that the units whose
integrity Local 507 could have lawfully protected, based on
location and relative number of employees, were those at
Fisher, or as further limited to Local 507’s Richmond Road
representation, to the incumbent Fisher warehousemen, who
alone were previously represented there by Local 507. The
same basic contention effecting a denigration of Local 507’s
exclusive collective-bargaining status in representing also
Seaway employees, appears expressed severally otherwise,
e.g., Seaway employees could not be favored simply because
they had joined Local 507 before the merger; and, if Re-
spondent Local 507 has based a seniority decision on unit
considerations, that given one group (the Seaway unit em-
ployees) should have been applied to another (R & R group
of employees), because neither had it before; and, in Local
507 insisting on the dovetail of Seaway drivers with Fisher
drivers, Local 507 has thereby violated the integrity of the
Fisher (driver) unit.
First, to extent the General Counsel has additionally and
relatedly urged Local 507’s contract mandated an endtail
only of new employees, not merged units, that position is re-
jected as unsupported by the evidence, whether view is made
of Fisher or Seaway Local 507 contract terms (or even Local
507 normal practice, for here there was additional bargain-
ing); and, to extent the claim is one intended to be made on
basis of Local 407’s contract, it is rejected as unpersuasive,
where again application change in that contract’s endtail term
is one effected by negotiation of all necessarily involved par-
ties (at least insofar as Fisher and Seaway drivers are af-
fected, as found below).
The underlying position of the General Counsel (and the
Charging Party) if fully accepted, would effectively relegate
the Seaway unit of (70) drivers and some (250) warehouse-
men to be without any effective service of Local 507 as their
exclusive collective-bargaining representative, in addressing
the effects of this planned merger and consolidation, if not
require Local 507 in order to do so, to similarly service em-
ployees unrepresented by Local 507 (or 407) as well (namely
the R & R employees represented by Local 400).
Indeed it would occasion the unit of Seaway employees to
be denuded of effective collective-bargaining service of their
designated representative at the precise moment when the
Seaway drivers and warehousemen unit would appear to
have been most in need of Local 507’s service as their col-
lective-bargaining representative to fulfill the very function
of seeking to lawfully protect the interests of the Seaway unit
employees about to undergo a radical change when Seaway
moved the principal part of its warehouse and distribution
operations to consolidate with Fisher and others (Rini and
Rego) as Riser subsidiaries. In the planned (prospective)
merger and consolidation designed to effect desired ware-
house efficiencies for Fisher, the plan was to be effected, not
singularly to be sure, but no less primarily by the substantial
transfer of Seaway’s work and unit personnel there. In such
merger and consolidation circumstances I conclude that the
involved statutory collective-bargaining representative(s), in-
cluding Local 507 as the exclusive collective-bargaining
agent of the Seaway unit employees here, may negotiate to
reach mutually acceptable seniority agreements, be they of
dovetail, or involve some combination of dovetail and
endtail, cf. International Harvester Co., supra. To extent a
contrary position is being generally advanced, it is appro-
priately rejected, Vaca v. Sipes, supra; and Transport Motor
Express, supra.
Moreover, the view presently expressed but practically
tracks time honored grant of giving effectuation to the under-
lying contract terms which continue uninterrupted through
operation of contractual successorship clauses. And see also
recent arbitrator Grievance Settlements on related issues,
Analysis, 139 LRR 104 (Feb. 2, 1992). E.g., there it is re-
ported an arbitrator recently upheld an endtail of drivers by
a company that bought trucks and assets of their employer,
where the language of the applicable multiemployer contract
specified that seniority was to be measured by the length of
service at a particular employer, not by service with any em-
ployer. And compare the noted circumstances also there con-
sidered where another arbitrator viewed an entry by two
companies into a joint venture as itself sufficient grounds to
order their seniority lists to be dovetailed on the stated view
that their joint venture was a new entity that had succeeded
to the contractual obligations of both companies, as com-
pared with other recognized valid principle of an acquiring
company’s employees enjoying a seniority preference over
an acquired company’s employees.
The General Counsel would then distinguish the Inter-
national Harvester case from having any application here on
the basis the agreement there reached was one reached by all
parties, while Local 507’s agreement such as is urged
reached here, was one reached limitedly with only certain of
the parties involved, namely Local 407, Fisher, and Seaway,
but was not inclusive of R & R or Local 400. Respondent
Employer (and Union) would in turn distinguish, and thus
defeat the General Counsel’s (and the Charging Party’s) in-
tended reliance on such cases as Teamsters Local 42 (J. W.
Daly), supra; and Barton Brands, supra, as being cases
where, the claimed disparate treatment by the union had
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clearly occurred after a union represented both groups, and
thus then owed a duty of fair representation to both. It would
seem the claimed distinction has merit.
In Barton Brands, two different units, represented by the
union after a certain purchase, had voted to be dovetailed in
light of a planned merger to take place at a new location that
was to be built by the purchasing employer. Indeed, the par-
ties amended their contract to reflect that. However, when
the new location was never built, and after there was some
business retrenchment and some layoffs had occurred on the
dovetailed basis in place, the employer and union negotiated
a new agreement which (at union insistence) then endtailed
the members of the smaller (former) bargaining unit, and
they were laid off. While the court reversed a Board finding
the union had there acted primarily to further a union offi-
cer’s political career, on basis of evidenced rank-and-file ac-
tivity in that regard, the court remanded on record suggestion
the union had acted solely on ground of political expediency,
the court observing, ‘‘While a union may make seniority de-
cisions within ‘a wide range of reasonableness . . . in serv-
ing the (interests of the) unit it represents,’ . . . such deci-
sions may not be made solely for the benefit of a stronger,
more politically favored group over a minority group.’’ (Case
citation omitted.) 529 F.2d at 798–799. The court also said,
‘‘In making its determination the Board should consider that
in order to be absolved of liability the Union must show
some objective justification for its conduct beyond that of
placating the desires of the majority of the unit employees
at the expense of the minority.’’
In addition to thus having established that in Barton
Brands, the union had represented all employees prior to the
union’s taking an action that was unfairly disadvantageous to
a smaller group of employees, the Employer would also have
noted that the court had distinguished other cases, which,
‘‘all involved endtailing decisions made at the time of the
initial acquisition rather than after the employees had been
dovetailed into the acquiring firm’s unit.’’ Id. at 800. The
Employer and the Union argue this was precisely the case
here.
In J. W. Daly, supra, an administrative law judge held,
and the Board agreed, in circumstances where both groups
of employees were represented prior to the time they were
fused into one unit, a respondent union could not then refuse
to consider or negotiate a dovetail system solely because one
of the groups had joined the union after the other, for in
doing so, the union would then be penalizing the later join-
ing group for prior exercise of their right to refrain from en-
gaging in union activity. Indeed, there the one unit of former
unrepresented employees was lately organized by the union
with an employer consolidating move to the already rep-
resented location in mind. The employees in the later orga-
nized unit were advised that they would be endtailed at time
of consolidation unless the dominant earlier organized group
consented to dovetail. On organizing, the employer recog-
nized the union and a contract covering the lately organized
group was negotiated similar in terms to the one already ap-
plying to the other group. Plans for consolidation at the first
location changed, and consolidation then occured at a new
location.
Argument for endtail based on lengthier tenure was there
rejected ‘‘because the represented employees at both loca-
tions formed one new unit at the time they moved
simutaneously into the (new) facility.’’ However, it was
more than 3 months after the union had undertaken to rep-
resent both groups, that the union and employer had actually
entered the written agreement which endtailed the last orga-
nized group.
In Whiting Milk Corp., 145 NLRB 974, a union was a
party to a multiemployer contract which contained (essen-
tially) a seniority dovetail provision to be applicable to any
units of an acquired company that were previously rep-
resented by the union. The Board found the contractual pro-
vision discriminatory on its face, and in application, because
it discriminated against employees because of their prior lack
of representation by the union. As applied upon a signatory
employer’s acquisition of a company with five plants, four
of which were previously represented by the union, and the
fifth unrepresented, the Board found the union unlawfully
endtailed employees from the new (deemed accreted) unrep-
resented unit while it dovetailed employees from the (simul-
taneously) newly acquired four units, that were previously
represented by the union.
The Employer has advanced the court’s contrary view in
NLRB v. Whiting Milk Corp., 342 F.2d 8 (1st Cir.), on the
distinction to be made between a failure of a union to rep-
resent certain members of its bargaining units and a union’s
right and responsibility to represent interests of members of
its bargaining units over those outside those units. The court
there, 342 F.2d at 11, said:
This is not a case in which the Union bargained for
preferential benefits for members of the Union in the
unit it represented relegating non-union employees in
the unit to an inferior status. It is simply a case where
the Union bargained for benefits for all employees
within the units it represented without at the same time
bargaining for similar benefits for employees for whom
it had no authority to speak. If this be an unfair labor
practice, on the same reasoning so also would it be an
unfair labor practice for a union to bargain for an in-
crease in wages in a unit it represented without at the
same time bargaining for an increase in the wages for
employees in a similar unit it did not represent.
The long and the short of this case is that the Union
bargained for and obtained a benefit for employees in
the unit it represented. This is not illegal discrimination
against employees in other units not represented by the
Union but only a normal and natural incident of union
representation.
However, with due deference, the Board has continued to
adhere to its Whiting Milk holding, and later applied it in cir-
cumstances where qualifying experience for a roster of em-
ployable unit employees was generally limited to experience
attained with employers having a collective-bargaining agree-
ment with the union. The Board there held, the union had
thereby effectively penalized employees who had theretofore
exercised a right to refrain from bargaining collectively
through the union, while rewarding those employees who
have chosen to work in units represented by the respondent
union, Stage Employees IATSE Local 659, 197 NLRB at
1189 fn. 8. However, it seems to me the Stage Employees
IATSE case must itself be distinguished here, because in that
setting, the prior contract with the union in a wholly separate
unit was being rewarded, while employment opportunity was
661RISER FOODS
wholly denied others without it; and, here involved are merg-
ing and consolidating businesses, with both contrasting sur-
viving and nonsurviving warehouses, and continuing and
ceasing collective-bargaining relationships.
To the extent the argument may be considered made on
the basis of the substantial facts there being (essentially) the
substantial facts here, the argument advanced, with all due
deference to that court, is more appropriately to be presented
to the Board, for it is the duty of an administrative law judge
to apply established precedent which the Supreme Court or
the Board has not reversed, Fred Jones Mfg. Co., 239 NLRB
54 fn. 4 (1978); Ford Co., 230 NLRB 716, 718 fn. 12
(1977); Iowa Beef Packers, 144 NLRB 615, 616 (1963); and
Novak Logging Co., 119 NLRB 1573, 1575–1576 (1958).
However, and in contrast with the case in Whiting Milk,
supra, where it appears both unrepresented (one) and rep-
resented (four) units were acquired at the same time in an
acquisition, the Employer has raised in brief, an additional
argument clearly resting on the asserted different merger and
consolidation facts here, ‘‘A fatal defect in the Complain-
ants’ argument, is its failure to reconcile the contradictory
fact that the former R & R employees were not part of any
unit represented by the Union when it took the position the
bargaining units it did represent would maintain higher se-
niority standing following the consolidation of operations.’’
The Employer has established that in both the J. W. Daly
case, supra, and in the Barton Brands case, supra, the union
involved (respectively) had insisted upon endtailing the
members of a disadvantaged unit after the union had become
the exclusive bargaining representative of those employees.
While the Employer concedes both those cases did involve
(essentially) disparate treatment among the members of units
represented by those unions, respectively, and not lawful in-
stance of protecting represented units, from arrival of strang-
er employees, whether of represented or unrepresented units,
the Employer clearly distinguished those cases on basis each
of the unions took the action after they represented the em-
ployees. I continue to address Employer distinguishment of
Whiting Milk, supra, on basis there the five units were simul-
taneously acquired, and here it is being contended Local 507
did not represent R & R employees in a merger and consoli-
dation agreement circumstance, nor before Riser’s hire of
them.
The central issue remains the legitimacy of Local 507’s
endtail position as taken in regard to R & R employees. Un-
questionably the Respondent Union timely took the position
that (former) R & R employees were hired by Riser as new
employees of Riser after merger and consolidation had oc-
curred; and, on this record it is difficult to conclude other
than that Local 507 maintained that position steadfastly with
the Employer. To the related extent the General Counsel
would rely on various above statements of Local 507 busi-
ness agent as animosity demonstrated to Riser’s imposed se-
niority dovetail of (former) R & R employees previously rep-
resented by Local 400, in the circumstances of this case, I
am not persuaded any discriminatory treatment is thereby es-
tablished (whether the remarks of the business agents be con-
sidered individually, or collectively); or, that it is reasonably
established therefrom Local 507 took the position of senior-
ity endtail for the former R & R employees because of Local
507’s animosity to them, rather than it appears that Local
507 did so in the interest of preserving perceived and exist-
ing lawfully negotiated unit seniority rights from correctly
perceived new hire dovetail dilutions.
Most of the business agents’ comments noted above are
discernible as made in that clearly established context. Some
of the business agents’ statements, addressed fully above,
strayed demeaningly and thus represented intemperate, even
injudicious remarks in emotionally charged and/or otherwise
heated and trying discussions for both affected employees
and business agent. However, if anything, overall absence of
general union animosity in this matter appears on certain
practical and more convincing levels, e.g., in its acceptance
of Riser’s increasing number of former R & R employees to
be employed; and, in the position Local 507 held and main-
tained that all (15) R & R employees when newly hired
might keep their (R & R-Local 400 negotiated, and Riser ac-
cepted) higher wage rates and earned amount of vacation
based on their prior R & R seniority, to extent not adversely
impacting on the contractual terms and conditions of employ-
ment that represented unit employees enjoyed under the un-
interrupted and still applicable collective-bargaining agree-
ments.
In light of the findings of fact made above, which need
not be repeated here, but from which it is clear and has pre-
viously been found that Respondent Local 507 had never
agreed to dovetail seniority of the former R & R employees
to be hired by Riser, I reject the Charging Party’s further re-
lated arguments to the extent they would rest now on either
an unwarranted finding that Local 507 had actually agreed
(explicitly or implicitly) to, and thereafter reneged on an
agreement to dovetail R & R seniority of the former R &
R employees to be hired (even as then a number still to be
negotiated), or, that Respondent Local 507 had subsequently
acquiesced in the Employer’s unilaterally imposition of a
dovetail of the R & R seniority of the former R & R em-
ployees upon their hire by Riser and employment during the
period June/July through November. Rather it appears clear
on more consistent, credible, and thus credited evidence, that
the Employer had not only unilaterally imposed, but there-
after had maintained the disputed dovetail seniority unilater-
ally, over Respondent Union’s continuous objection to it,
from June to November, and in some 25–30 meetings, until
Local 507 finally elected to enforce its position at time of
the Employer’s greater economic vulnerability.
The Charging Party’s overly broad contention that it was
the membership in Local 507 which is the determining factor
for seniority also fails to readily convince, given more read-
ily apparent Local 507 (early) agreement not only to dovetail
credit of the Fisher driver seniority, but to continued rep-
resentation of (former) Fisher drivers by Local 407. The real-
ly undisputed fact herein is that Locals 407 and 507 came
to a separate dovetail accommodation on all their represented
drivers. But that does not warrant a conclusion it was mem-
bership in Local 507 which was the determinative factor in
that arrangement, even though Local 407’s continued rep-
resentation of Fisher drivers is now limited to a prior unit
of Fisher drivers, and (at least) with surface appearance of
being a grandfathered one. Nonetheless, as part of the agree-
ment Local 407 continues to represent the group of Fisher
drivers, after the negotiated dovetail was accomplished.
The fact is also inescapable that Local 507, as the exclu-
sive collective-bargaining representative of incumbent Fisher
warehousemen under contract with Fisher, and as the exclu-
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sive collective-bargaining representative of Seaway
warehousmen and drivers under contract with Seaway, could
negotiate directly with Fisher and Seaway (prior to Fisher
and Seaway merger and consolidation as subsidiaries of
Riser) an effects of future merger and consolidation agree-
ment. In fact, they did so. Therein not only was the seniority
of all the Fisher and Seaway warehousemen then fairly
agreed to be dovetailed and the warehousemen to be contin-
ued to be represented by Local 507, but Fisher and Local
407, Seaway and Local 507 also negotiated and agreed (prior
to merger and consolidation) to a combined warehousemen
classification; that there would be interchangeability for
warehousemen between the surviving warehouses of Fisher
and Seaway, both of whose warehouses (unlike that of R &
Rs) were to continue open; and they agreed that the existing
Fisher-Local 507 (warehousemen) contract coverage would
extend to all warehousemen employed at Richmond Road;
and that the Seaway-Local 507 agreement would apply to all
warehousemen (and drivers) employed at Seaway’s Aurora
Road warehouse.
Moreover, for the same reasons it would appear equally
clear Local 507, as the exclusive collective-bargaining rep-
resentative of all Seaway drivers at Aurora Road (the major-
ity of whom were to be transferred to Richmond Road in
planned Seaway warehouse consolidations there) could meet
prior to such merger and consolidation with Local 407 as
then the exclusive collective-bargaining representative of all
Fisher drivers who were then incumbent and possessing a
Fisher-Local 407 contract right of endtail; and the two
unions then negotiate together with their involved employers,
Fisher and Seaway, terms of an effects of merger and con-
solidation agreement that would be deemed mutually bene-
ficial and acceptable, and which might, as here did, provide
for acceptable dovetail of seniority of all Seaway drivers
with Fisher drivers effective on merger or consolidation of
operations; with all party agreement for a combined driver
classification and warehouse interchangeability; and, then
otherwise provide for separate contract coverage as before.
(Local 507 would have it relatedly observed that unlike the
case with R & R-Local 400 agreement, the underlying base
agreements of Fisher-Local 507, and Seaway-Local 507 both
continued, detailing accrual and use of seniority.
In that regard, if, as it is shown here, unit realignment of
existing employees is accomplished by voluntary agreement
of all the parties required to be involved for such agreement
(i.e., Fisher, Seaway, Local 407, Lccal 507, with Riser
present) involved parties may agree Local 407 thereafter con-
tinue as exclusive collective-bargaining agent of only the
prior unit, or now group of 60 Fisher drivers it represented
prior to merger and consolidation, with coverage of its exist-
ing Fisher-Local 407 agreement thereafter continued applica-
ble to them (only); and, with a concurrent agreement of all
parties that Local 507 be recognized as not only continued
exclusive collective-bargaining representative of all Seaway
drivers as before (whether on the merger and consolidation,
the self-same former Seaway drivers are to be employed at
Richmond Road warehouse or are continued in employment
at Seaway’s Aurora Road warehouse), but also agree on
Local 507 as representative of any new drivers that are to
be hired thereafter, at either warehouse, including Richmond
Road; and for the Seaway contract (driver terms) to have ap-
plication to all non-Local 407 drivers, whether in form of the
base Seaway-Local 507 agreement, or the Fisher-Local 507
(warehousemen) agreement (now with Seaway driver insert).
Essentially that is what Fisher, Seaway, Locals 407 and
507 (with Riser representative present) mutually agreed upon
in their early February negotiation meeting, and which (ef-
fects of consolidation) agreement, though unsigned when pre-
pared in writing in May, they have no less timely and fully
implemented (except for certain unagreed R & R terms as
credibly explained) effectively on June 8, when the merger
and consolidation of Fisher and Seaway, Rini, and Rego (but
notably not R & R) with Riser was effective. In early Feb-
ruary, though Riser was there surely to ensure practical
agreements were reached by its planned future subsidiaries
(Fisher and Seaway), and as to which it had real interest, as
it was to become parently responsible therefor (if not succes-
sor thereto), just as it was clearly to be successor to the Fish-
er and Seaway base agreements, on directed merger and con-
solidations. However, from as early as February, Riser was
not intended as or to be actual signatory to any agreement
reached by Fisher, Seaway, Locals 407 and 507 (nor for that
matter was Riser signatory to the closing agreement of R &
R and Local 400). Riser was to be the successor Employer.
It is thus clear, and I find Local 507 negotiated with the
parties that it was required to be directly involved with,
namely Local 407 as incumbent driver unit representative at
Richmond Road, Fisher as incumbent driver employer (as
well as employer of incumbent warehousemen that Local 507
already represented), and Seaway as employer of a planned
(partially, but principally) consolidating unit of both drivers
and warehousemen there. Thus from Local 507’s vantage
point of an intended negotiation of an effects of merger and
consolidation agreement for those it then represented, Local
507 negotiated its dovetail agreements with all the principal
parties it had to deal with on that account, namely, Local
407, Fisher and Seaway, and with Riser counsel present.
Though I further conclude and find that Local 507 was not
obligated to search out Local 400 and negotiate an agreement
with R & R and Local 400 that any former R & R employ-
ees hired by Riser would be endtailed and not dovetailed,
this does not end the inquiry, for I find that Local 507 and
Riser did discuss the subject of Riser’s hire of some former
R & R employees, with agreement the number was to be ne-
gotiated. What I have found Local 507 never agreed to was
for a dovetail of R & R seniority into the units that Local
507 then represented (only).
The Charging Party’s argument is reduced to contention
Local 507 (in premerger bargaining status) prevailed upon
Local 407 to dovetail when it suited their advantages, and
Local 507 sought to endtail, when it did not suit their advan-
tages, which the Charging Party contends is clearly arbitrary
and invidious; and which Respondents contend was but
Local 507’s duty as their exclusive collective-bargaining rep-
resentative in such matters. The position is seen to involve
the same basic issue of the lawfulness of Local 507’s action,
when having successfully negotiated a premerger areement of
dovetail seniority conditions for the units of (Fisher and Sea-
way warehousemen and Seaway drivers) employees that it
then represented, Local 507 thereafter refused to accept Ris-
er’s premerger proposed dovetail of the R & R seniority of
the former R & R employees to be hired after merger; and
continued to oppose Riser’s subsequent unilateral dovetail of
R & R seniority for former R & R employees that Riser
663RISER FOODS
hired postmerger, especially in light of Local 507’s agree-
ment on hire thereof of a number to be negotiated, though
without Local 507’s (or Local 407’s) prior agreement on a
dovetail of those hired in the units they represented. The case
in final analysis is deemed to lie for resolution somewhere
between the case circumstances of International Harvester,
supra, and Whiting MiIk, supra; and, in my view, with the
more determinative facts deemed closer to the former effica-
cious party agreement, for these reasons.
Local 507 was collective-bargaining representative of (in-
cumbent) Fisher warehousemen and Seaway drivers and
warehousemen. All said, they are to whom it owed complete
loyalty. Local 507 had statutory status to represent all the
employees in the units that it then represented, including to
enforce existing agreements, and negotiate new ones. That is
what it did in early February with the parties with whom it
was then required to negotiate for such terms. Though Local
507 expressed general agreement to, and subsequently hon-
ored a commitment made to Riser’s hire of same former R
& R employees, a number unquestionably to be negotiated
(by R & R and Local 400, with Riser present, and agreeable)
Local 507 no less did not then agree to a dovetail of their
seniority which would have correspondingly diluted the se-
niority of the employees whom it alone then represented.
It is in that regard a fundamental flaw appears in the
urgings of the General Counsel and the Charging Party,
namely, that Local 507 as a statutory collective-bargaining
representative could not seek to negotiate favorable dovetail
terms for all the employees it represented, while adamantly
not agreeing to those terms for R & R employees whom it
not only did not represent, but who were not to be hired until
after merger was effected. While it is true that Local 507 ne-
gotiated its beneficial terms prior to merger, Local 400 was
no less able to have done that for the employees it then rep-
resented, assuming it was in the same position as Local 507
to do it.
There is strong indication of record Local 400 simply was
not in the same position. Its employer’s warehouse was clos-
ing; its contract was ending; and its contractual standing for
future employment was not as firm. By prior negotiation of
a closing agreement, Local 400 could bind R & R. Even as-
suming on the facts of this case, without necessarily so find-
ing (in light of certain waiver provisions), R & R’s closing
agreement bound Riser, neither the Local 400-R & R closing
agreement, nor Riser’s agreement thereon could bind Local
507 (or Local 407) without its (their) agreement; and, that
none of them had.
The more ready fact is Local 400’s future job and senior-
ity claims against Riser were not as contractually perfectible
as Local 507’s, as Riser’s counsel has as much as conceded
in explaining R & R’s and Local 400’s acceptance of the
closing agreement terms that provided limited employment
opportunities for but the 15 most senior employees, and
Local 400’s acceptance of that arrangement for practical rea-
son it was the best it could do. It conforms with
noncommital employer answer given on employee inquiry as
to the chances for employees’ retention of the Riser’s unilat-
erally granted dovetailed seniority.
When the Rini and Rego partnership R & R closed its
warehouse, I have no doubt Rini and Rego felt strong obliga-
tions to their former employees that they acted upon; and I
find they thought they had dovetail seniority solution on.
However, they did not in fact have Local 507’s (or Local
407’s) agreement thereon; and they knew that (at least) be-
fore merger and hire, or dovetail implementation. The former
R & R employees’ opportunity for employment thereafter
was with Riser’s operation (serving principally Fisher and
Seaway warehouse operations). True Riser’s consolidated
warehouse and distribution operation was also planned to in-
clude warehouse and distribution service for Rini, and for
Rego as well. But any premerger accommodation thereon
was Local 400’s collective-bargaining responsibility to effec-
tively obtain through its negotiations with R & R and ulti-
mately Riser, not Local 507’s obligation to create, nor then
preserve.
In basic agreement with the Employer and the Union I
conclude and find that Local 507 was not precluded from en-
tering premerger negotiations on behalf of the only employ-
ees it then represented, to whom it owed complete loyalty;
nor in its reaching any of the agreements it did with involved
parties, prior to merger, and thus at a time when it did not
represent R & R employees. To hold otherwise would
produce a clearly undesired effect of precluding parties who
are involved in ever more difficult and complex merger and
consolidation proceedings from resolving equally difficult
collective-bargaining matters of legitimate concern to them,
in an orderly, timely, and mutually desired manner. Were
such premerger negotiations precluded, employees under-
standably concerned and posturing for changing positions
would but make risk of intolerable conditions of transition
only the more likely. Even with ordered transitional agree-
ments reached here, there was instance of R & R jockeying
for an early arrival of additional warehousemen at Riser for
the purpose of effecting departmental seniority preferences
for them over others later arriving.
In light of the above circumstanoes, I further conclude and
find Local 507 obtained dovetail seniority benefit for certain
employees and not others, not as has been, in my view, over-
simplified by the General Counsel and the Charging Party,
because the employees were members of Local 507, but be-
cause Local 507 as the designated statutory collective-bar-
gaining representative of those units of employees was able
to successfully negotiate favorable dovetail seniority and
other terms for the employees it represented, in cir-
cumstances of a presently planned merger and consolidation,
as it had a statutory obligation to do. In contrast, Local 507
simply owned no similar status as bargaining representative
for employees who were then still employed by R & R. They
were represented for any such purpose by Local 400. The
moment Fisher merged all four businesses (but not R & R)
consolidated as subsidiaries of Riser. Riser then became obli-
gated as successor to the subsidiaries’ contracts, including
the Fisher and Seaway agreements with Local 507, and the
Fisher agreement with Local 407.
Thus, prior to merger, and indeed at moment of merger,
Respondent Local 507 owed no statutory collective-bargain-
ing duty of fair representation to any of the then R & R em-
ployees; and Local 507 did not reasonably have any such
collective-bargaining obligation before those (former) R & R
employees were subsequently hired by Riser, which occurred
after consolidation; and it was only at that time the former
R & R employees became new employees of Riser in an ex-
isting unit, and were only then with collective-bargaining
right to be represented fairly by Local 507, which Local 507
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
met in maintaining a position for prompt inclusion of their
seniority endtail to the existing unit dovetail of Fisher and
Seaway warehousemen and Seaway and Fisher drivers al-
ready agreed to be employed there.
But even assuming, without so deciding, that Duvins ini-
tial insight is correct, in the sense that there is to be an ex-
tension of the Whiting Milk, or Stage Employees IATSE
Local 659 principles to merger and consolidation cases such
as here, such that Local 507’s statutory collective-bargaining
status, considered alone, somehow did not enable Local 507
to bargain in that limited unit manner, e.g., without
addressment of the scope of the prospective unit, and, that
it thus appear that Local 507 could not negotiate a dovetail
for represented members only and deny it to R & R employ-
ees then unrepresented by it, especially where it had in some
manner already agreed with Riser same were to be later
hired, the Employer and the Union otherwise persuade that
there were even then still other objective considerations that
support the earlier negotiated dovetail of Fisher and Seaway
employees, and not that of former Local 400 R & R employ-
ees, who were no less to be new hires.
Thus, Local 507’s contracts each contained successorship
clauses which at the moment of merger would and did bind
Riser as a successor to the terms of each. Those Fisher-Local
507, and Seaway Local 507 terms provided for certain pref-
erences to be extended to more senior employee over less
senior, respectively. In the end, in agreement with Respond-
ent Union and Respondent Employer I am thus persuaded,
conclude and find, independent of the fact that premerger
consolidation agreement was actually reached, the Fisher-
Local 507 (warehousemen) contract and the Seaway Lccal
507 (drivers and warehousemen) contract, read in conjunc-
tion (as, e.g., by the single successor here, Riser) would
make it clear as supportive of the agreements reached, that
the intent of each contract that Riser had simultaneously suc-
ceeded to at time of merger, and to which it was imme-
diately bound, was to preserve the relative seniority of those
employees in each unit to which each agreement respectively
applied, and thus a dovetail of all of them objectively justifi-
able in its consolidated operations.
Moreover, this would appear as especially so in the cir-
cumstances here where substantial similarities appear in the
instant merger and consolidation plan for increased ware-
house efficiencies, as are in a joint or combined venture for
some such, or ather singular purpose, where dovetailing has
been found justifiable. In such circumstnccs, where Local
507 thus has justifiably bargained premerger for warehouse-
men dovetail, I further conclude and find it bargained justifi-
ably with necessary parties to obtain the dovetail of Local
507’s remaining Seaway drivers with Lccal 407’s Fisher
drivers. But even if Local 507 had not been able to negotiate
the dovetail of its Seaway drivers with the incumbent Fisher
drivers, it would have been able to then negotiate an endtail
of already employed Seaway drivers as of merger and con-
solidation. In agreement with the Employer, I also conclude
that the parties were not required to have their agreements
effectuation await perfection on employee postmerger arrival
at Richmond Road. There were thus objective considerations
for either Seaway dovetail or endtail that would have applied
at moment of merger and consolidation through either the
(actual) Local 507 effects of merger ageeement with others
(or failing that, proper premerger negotiable endtail of Sea-
way drivers at time of merger), and either supportable as
warranted and justifiable by the continuous warehouse oper-
ations, continuing contracts, and the effect of successorship
clauses and existing seniority clauses to which Riser would
become automatically bound at moment of merger.
Finally, the facts herein simply militate against imposing
a premerger bargaining obligation on the part of Local 507
to the former R & R employees. This is seen most clearly
in the consideration that it was not Local 507 that negotiated
a premerger (closing) agreement for R & R employees that
notably had provided for (former) R & R employees to be
paid wage rates when hired by Riser, that were higher than
Local 507 had negotiated for the employees it then rep-
resented. Local 400 as collective-bargaining representative of
the R & R warehouse employees (both drivers and ware-
housemen) clearly did that. The fact is Local 400 represented
the former R & R employees right up until the merger and
consolidation, only signing closing agreement the day after
the merger and consolidation were directed.
It was at the earliest then when the former R & R employ-
ees’ transferred their membership from Local 400 to Local
507 (beginning June 9), but more precisely as part of a bar-
gaining unit, when they were hired by Riser (June 12–July
24) that Local 507 first began to represent former R & R
employees as new unit employees. It was only at that time
that Local 507 owed them a duty of fair representation,
which was then fully met with Local 507’s applied and en-
forced endtail seniority position.
While Local 507 accepted the number of former R & R
employees that R & R, with Riser’s acceptance, had nego-
tiated with Local 400 would be hired by Riser, and while
Local 507 accepted the outcome Local 400 had successfully
negotiated that Riser wauld pay the higher R & R-Local 400
wage rates to the former R & R employees on their hire by
Riser, Local 507 did not have to accept R & R-Local 400’s
additionaly negotiated claim for dovetail seniority (or Riser’s
agreement therewith) to which neither Local 507 nor Local
407 had earlier agreed. Local 507 was in control of its own
negotiation position, but Local 407 controlled a contractual
endtail position that, if Local 507 had to overcome by sepa-
rate negotiation, so it would appear Local 400, which is not
shown.
As a term of a negotiated premerger closing agreement be-
tween R & R and Local 400, and as proposed by Riser, the
proposed dovetail for former R & R employees certainly
stands in no better stead than the consolidation agreement
negotiated by Local 507 and Local 407. But it stands in
worse position, as one never agreed to by the latter. As then
unilaterally imposed after merger at time of hire, dovetail of
R & R seniority diluted the dovetailed seniority of the unit
employees Local 507 (and Local 407) already represented
and had negotiated for. Indeed, it would appear under either
circumstance of the (negotiated) premerger effects of consoli-
dation agreement, or other view of likely negotiation to be
undertaken in light of projected Riser successorship obliga-
tion to both Fisher-Local 507 and Seaway Lacal 507 units,
seniority preference for Local 507 represented units reason-
ably tracked effects of the successorship clauses, and became
effective no later than at time merger and consolidation was
effective, and Riser obligation thereto accrued, June 8, thus
before any of the former R & R employees were hired by
665RISER FOODS
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Riser, or before any of the former Local 400 members had
transferred their membership to Local 507.
For all of the above reasons, I conclude and find Respond-
ent Local 507 has not violated Section 8(b)(1)(A) and (2) of
the Act as alleged in the complaint; and, Respondent Riser
has not violated Section 8(a)(3) and (1) of the Act as alleged
in the complaint. Accordingly it will be recommended that
the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Riser Foods, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 507 is a labor
organization within the meaning of Section 2(5) of the Act.
3. Neither Respondent Local 507 nor Respondent Riser
has violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The complaint is dismissed.