Lee A. Consaul Co., Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1969

175 N.L.R.B. 547 (N.L.R.B. 1969)

LEE A. CONSAUL CO., INC. 547
Lee A. Consaul Co., Inc .; F.H. Hogue Produce Co.;
J.W. Olberg & Son; L .M. McLaren Produce,
Inc.; Vurkusovich , Inc.; Admiral Packing
Company; the Woods Company, Inc.; Ritz
Distributing Company; Bruce Church , Inc.; Pete
Pasquinelli ; G&S Produce Company, Inc.; L.T.
Malone Company ; the Garin Company; Shippers
Labor Committees of Imperial , San Joaquin
Valley, Blythe and Yuma Valley, Unincorporated
Associations Acting for and in behalf of their
Members, and their various Member Companies
and Gary L. Buckelew , Bruce Munroe and George
Crowell , Jim J. Cash , Charles Ellis and Emmett
W. Clagett and Keith R . Jones. Cases
28-CA-1320-1, 28-CA-1320-2, 28-CA-1321,
28-CA-1322, and 28-CA-1323
April 24, 1969
DECISION AND ORDER REMANDING
FOR FURTHER HEARING
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon charges filed by the above-named
individuals, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 28, issued a Third Amended Complaint
dated May 5, 1967, against the Respondents,
alleging that the Respondents had engaged in and
were engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended. Copies of the
charge and the Third Amended Complaint were
duly served upon the Respondents.
The Third Amended Complaint alleged, in
substance, that Respondents had discharged and
refused to reinstate 192 named employees because
they engaged in a strike and in union and concerted
activities for their mutual aid and protection. The
Respondents, in their answer, denied the commission
of the alleged unfair labor practices and asserted
various affirmative defenses.
On September 25, 1967, Respondents filed a
Motion for Dismissal of Entire Complaint on the
ground that the alleged discriminatees "engaged in
an unauthorized minority strike in derogation of the
Union's representative status, thereby engaging in
an unprotected activity under the National Labor
Relations Act, as amended." The Regional Director
on September 28, 1967, referred the aforesaid
Motion to a Trial Examiner pursuant to Section
102.25 of the Board's Rules and Regulations. The
Associate Chief Trial Examiner issued an Order, on
October 6, 1967, referring Respondent's motion "to
the Trial Examiner who will conduct the,hearing. . . . 1,
The parties stipulated before the Trial Examiner
that the initial hearing would be limited to the issue
of whether a strike against the Respondents which
occurred in June 1965 was unprotected activity
under Section 7 of the Act, and that the Trial
Examiner could enter a preliminary decision ruling
on that issue. All other issues in these cases were
accordingly reserved, including the claim of
Respondents that the employees involved are
agricultural laborers exempt from the provisions of
the Act. The parties also stipulated that the
employees who worked for the Respondents in the
1965 melon season and participated in the strike or
work stoppage were discharged or terminated
because they took part in the strike or work
stoppage.
In accordance with the stipulations of the parties,
Trial Examiner Ramey Donovan, after a hearing on
the issue raised by Respondents' motion to dismiss,
issued his Decision on March 27, 1968, granting the
motion and dismissing the Third Amended
Complaint in its entirety. Thereafter, the General
Counsel and the Charging Parties filed exceptions to
the Decision and supporting briefs, and the
Respondents filed a brief in support of the Decision.'
By Order dated July 19, 1968, the Board
remanded the instant proceeding for the purpose of
taking evidence with respect to Respondents'
contention that the Board was without jurisdiction
since the employees involved were exempt
agricultural workers. Thereafter, Respondents Lee
A. Consaul Co., Inc., and G&S Produce Company,
Inc., stipulated that their employees were engaged in
packing melons and other produce which were
produced by other concerns, that they therefore are
not exempt as agricultural workers, and that they
are employees within the meaning of the Act.
Pursuant to said stipulation, the parties joined in a
motion requesting the Board to rule upon the issue
initially considered by the Trial Examiner. The
Board, having duly considered the matter, hereby
grants that motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case. For the reasons set
forth below, the Board does not adopt the Trial
Examiner's dismissal of the complaint in its entirety.
The instant proceeding involves a strike that
occurred in the course of negotiations for a new
collective-bargaining agreement. Over a period of
'Sec 102 27 of the Board' s Rules and Regulations provides that any
party may obtain review of a Trial Examiner' s action in granting a motion
to dismiss the complaint in its entirety However, the parties have
acquiesced in proceeding by way of exceptions instead of a request for
review
175 NLRB No. 93
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years there has existed a multiemployer bargaining
unit, to which the 13 Respondents and other
produce packers belonged, the employees being
represented by "United Packinghouse, Food and
Allied Workers and Its Local No. 78-B". Prior to
the strike in question the most recent contract had
been between the Union and the Shippers Labor
Committee, representing 62 employers in the
Imperial Valley, San Joaquin Valley, Blythe, all
located in California, and Yuma Valley, Arizona.
This contract expired on March 15, 1965. In
February 1965,2 negotiations for a new contract
began. No agreement had been reached by June,
and the employees continued working without a
contract. On June 10 the Union's negotiating
committee submitted a comprehensive contract
proposal, which it labelled a "final offer." The next
day the Employer committee submitted its own
version of a "final offer," which the Union
committee told the Employer committee it would
submit to the membership in accord with the
Employers' request, but with a recommendation that
it be rejected. The Union committee pointed out
that because the membership was widely scattered,
it could not submit the proposal to the entire
membership before July 1. The negotiating meeting
was adjourned without date for renewal.
The next day, June 12, the Union executive board
met to discuss the status of negotiations. Executive
Secretary Feller, a full-time official of the Union
who was its chief spokesman on the negotiating
committee, but was not a member of the executive
board, reported on the latest events. The executive
board unanimously agreed that the Employers'
proposal should be submitted to the membership
with a recommendation that it be rejected, but that
negotiations be continued. The executive board
proceeded to schedule a series of meetings of the
various segments of the membership over the next 2
weeks. According to the credited testimony of
Feller, he told the executive board in the course of
his status report that there were a number of issues
which, if unresolved, would be strike issues, but that
if future negotiations failed to produce any
satisfactory results, any strike to be considered
should not be in the Yuma area, where a previous
strike had failed. A member of the executive board
testified that he had suggested that a strike might be
in order.
The first of the scheduled membership meetings
was held at 7:30 a.m. on June 16, for the employees
classified as packers and lidders in the Yuma area.
The meeting was called for 7 a.m. and although a
quorum was present at that time, Merriman, the
Union president, waited a half hour or until about
100 members were present before calling the
meeting to order. Merriman gave the floor to Feller,
who presented the factual background and expressed
the view that the Employers' proposal would be
'All dates refer to 1965 unless otherwise indicated.
rejected and negotiations continued, but that
meanwhile there should be no work stoppage.
Someone made a motion that the meeting be
recessed for 1 hour in orderto get more packers to
participate in the proceedings. Merriman did not
entertain the motion.' When Feller finished
speaking, a motion was made to withdraw the
Union's contract proposal to the Employers, to
reject the Employers' offer, and to continue
negotiations. The motion was carried, apparently
without opposition, by about 125-150 members then
present. It was then about 8:30 or 8:40 a.m., and
Merriman adjourned the meeting without a motion.
At this time there were still latecomers arriving at
the meeting, some of them asking what was going
on, and, upon being informed, shouting for a
"revote." These requests were ignored by Merriman,
who left the hall with Feller, indicating to the
latecomers that they should have been there at 7
a.m. After Merriman and Feller left, a group, which
by this time numbered around 200, stayed on. At
about 10 a.m. Union Vice-President Cook, who had
been present when the meeting convened at 7:30 and
had left afterward, returned and assumed the
position of presiding officer at the request of some
of those present. A motion was made to stay in
session and not to return to work until negotiations
were resumed and the Employers made a
meaningful contract offer. The motion was carried,
apparently without dissent, and the meeting
continued in session on into the afternoon, or at
least was in session in the afternoon when a
delegation went to Feller at the Union office and
asked him to come and speak to those assembled at
the hall. Feller went, and told them that he did not
recognize the meeting as an official union meeting.
He said that the work stoppage was unauthorized
and was interfering with negotiations, and urged the
men to return to work. He relayed to them a
message from the Employers that the strikers would
be discharged if they were not back at work by 5
p.m. Feller also issued a mimeographed notice, in
the name of the Union, urging members to resume
work, stating that this was the "official position of
the Union." Sometime the same day a steering
committee formed by the strikers delegated
Montgomery, a member of the Union negotiating
committee, to request the Employers' Labor
Committee to come and talk to the strikers. The
Employers' representatives who were contacted
refused on the ground that they could not negotiate
with anyone except the union representatives.
Another meeting of the strikers was held the
entire next day, June 17, at another hall they hired.
Feller was again requested to speak to them, which
he did, repeating much of what he had said the
previous day, and adding that the Employers could
'The Union had arranged with the Employers that the reporting time for
work be moved from 8 to 9 a . m. to allow the employees to attend the 7
a.m. meeting and arrive at their work stations, some distance away,
without penalty.
LEE A. CONSAUL CO., INC. 549
not negotiate with anyone but the Union, that the
Employers had thousands of college students in
Arizona who could be used as "scabs," and that he
believed the union people should wait until the
season reached the California area before striking.'
Feller also introduced Tauer, an international
representative, who told the strikers that what they
were doing was wrong (for which he was booed),
and that the Union committee had plans for a strike
when the time and place were right.
Negotiations resumed the same day (June 17)
between the Union negotiating committee and the
Employers' committee, resulting in a new and
substantially higher contract offer by the Employers
on June 19. The Union committee caucused and
decided to submit the new offer to the membership
without any recommendation. Meanwhile, the offer
was reduced to writing, in the form of a
"memorandum of understanding" to which was
added a provision that no Employer would be
required to reemploy its striking employees. This
memorandum was signed by representatives of both
parties, subject to ratification. The Union
membership ratified the contract, its choice being
limited to acceptance or rejection in toto, by a vote
of 522 to 194. A contract was signed on June 22.
The Trial Examiner found that the Union's
executive board, at the time of the strike, had
reached a consensus that there would be a strike in
the California section early in July if the Employers
either refused to resume negotiations or, in
resuming, refused to improve their contract offer. In
reaching this consensus, the Trial Examiner
reasoned, the executive board had implicitly decided
not to strike at the time and place the actual strike
took place; i.e., at Yuma, Arizona. He further found
that since the executive board was responsible for
establishing union policy, subject to the wishes of
the full membership expressed at a meeting, and
there having been no meeting of the full membership
at which this policy could have been countermanded,
the consensus and implied decision of the executive
board were also that of the Union. The Trial
Examiner thereupon concluded that a strike opposed
to such a consensus is necessarily in derogation of
the Union's status as exclusive bargaining
representative, and, therefore, under the rule of
N.L.R.B. v. Draper Corporation,' is unprotected
activity. While not regarding it as essential to his
conclusion, the Trial Examiner adverted in this
connection to the strikers' attempt to communicate
with the Employers' committee directly, which the
Trial Examiner characterized as an attempt to
bypass the Union leadership in negotiations.
One of the principal factors the Board has relied
on in deciding whether an "unauthorized" strike is
'Apparently a good number of the employees in the unit worked in
Arizona first, then shifted to California later in the season Feller felt that
a strike at this time would be ineffective because of the ease with which the
Employers could replace strikers with college students
'145 F 2d 199 (C.A 4, 1944)
protected is whether its objective is in support of, or
in opposition to, the objectives of the union.' At the
same time, we have indicated that a strike might
under some circumstances be unprotected, even
when its objective is in support of union policies, if
it is undertaken in the face of some final action
taken by the Union as bargaining representative and
has the purpose or effect of exerting pressure to
modify that final action.' We have also held that
express disapproval of the strike by the Union
administrative officials does not in itself render the
strike unprotected,' and that a strike does not lose
its protected status because not called in the manner
prescribed by union constitutions and bylaws.' It
seems clear to us that concerted strike action by
employees for the purpose of securing increased
benefits may not lightly be characterized as
"unprotected" activity, subjecting them to
peremptory discharge. There is no reason why an
employer should have carte blanche in discharging
such employees for engaging in such conduct unless
the walkout occurred in circumstances which
indicate actual prejudice to the integrity of the
collective-bargaining relationship.
In the present case, the strike was clearly in
support of the Union's objectives, the executive
board having recommended rejection of the
Employers' last offer and the continuation of a
demand for a better one. Indeed, within 5 days after
the commencement of the walkout, the negotiations,
which had continued over a 4-month period, were
brought to a conclusion with the parties reaching
agreement on the basis of a new and substantially
higher offer by Respondents.
However, the Trial Examiner, in finding the strike
unprotected, viewed the walkout as contravening a
no-strike "consensus" that purportedly represented
the official position of the Union. We disagree. As
the Trial Examiner himself found, the executive
board of the Union, subject to formal action of the
membership, is the source of union policy. The only
action of the executive board at times material to
the strike was the approval of a recommendation
that the membership reject Respondents' last offer
and that negotiations continue. Executive secretary
Feller, himself not a member of the executive board,
was plainly opposed to a strike at Yuma and did
convey his opinion to the executive board. However,
Feller's position was not proposed in such fashion as
to elicit a determination as to whether or not the
executive board endorsed his views. Therefore, there
is no evidence that the board adopted a position
either for or against a strike. While the record
shows that Feller, and international representative
"Hoffman Beverage Company, 163 NLRB No 134 (TXD)
'Sunbeam Lighting Company, Inc, 136 NLRB 1248, enforcement
denied 318 F 2d 661 (C.A 7)
'Hoffman Beverage Company , supra, fn 6, R C Can Company, 140
NLRB 588, 596, enfd 328 F 2d 974 (C A 5)
'M&M Bakeries, Inc, 121 NLRB 1596, 1604 , enfd 271 F 2d 602
(C A 1)
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tauer opposed and made efforts to curtail the
walkout, their views, not having been adopted by the
Union, merely stand as the independent opinions of
union officials and are not to be regarded as the
equivalent of formally declared union policy.'" In the
circumstances, we find that the evidence fails to
disclose that the Union had arrived at any final
position with respect to the strike issue. Therefore,
the effort by the strikers to secure a favorable and
prompt resolution of the contractual dispute was not
shown to have had the purpose or effect of bringing
pressure to bear upon the Union to alter any
established course it had taken during
collective-bargaining negotiations. Nor is a different
result required by the abortive attempt of the
strikers to have members of the Employers' Labor
Committee address them. The evidence concerning
this incident is too meager to warrant a finding that
the purpose of the invitation was either to bypass,
supplant or undermine the strikers'
designated-bargaining representative. Accordingly,
we find, on the basis of the record before us, that
the strike constituted "concerted activities for the
purpose of collective bargaining" expressly protected
by Section 7 of the Act, and that Respondents
violated Section 8(a)(3) and (1) by discharging
employees for participation in said strike."
In accordance with the stipulations of the parties,
we find that the employees of Respondents Lee A.
Consaul Co., Inc., and G&S Produce Company,
Inc., are "employees" within the meaning of the
Act. We shall order these cases to be remanded,
pursuant to the stipulations, for litigation of all
remaining issues.
ORDER REMANDING
It is hereby ordered that the record in this
proceeding be, and it hereby is, reopened, and that a
further hearing be held before Trial Examiner
Ramey Donovan for the purpose of taking evidence
and reporting his findings, conclusions, and
recommendations on all of the issues in these cases
not heretofore resolved.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Director
for Region 28 for the purpose of arranging such
further hearing, and the said Regional Director be,
and he hereby is, authorized to issue notice thereof.
IT IS FURTHER ORDERED that, upon the conclusion
of such hearing, the Trial Examiner shall prepare
and serve on the parties a Supplemental Decision
containing findings of fact, conclusions of law, and
recommendations to the Board, relating to the issues
herein remanded and that, following service of such
Supplemental Decision on the parties, the provisions
of Section 102.46 of the Board's Rules and
Regulations shall be applicable.
'"See, e .g , cases cited at footnote 8, supra
"The statutory remedies accruing to those participating in the stoke
were not waived by the provision in the June 22 contract that no Employer
would be required to reemploy its stoking employees See Old Town Shoe
Company, 91 NLRB 240, 243, fn I l