I. Posner, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1963

140 N.L.R.B. 1313 (N.L.R.B. 1963)

I, POSNER, INC., ETC. 1313
1. Employees engaged by Bishopric Products Company as "combo
men" currently represented by International Union of United Brew-
ery, Flour, Cereal, Soft Drink and Distillery Workers of America,
and its Local 12, are entitled to perform all blasting and relining work
on the interior of brewery tanks at the Galveston, Texas, plant of Fal-
staff Brewing Corporation. Accordingly, Local 585 of the Brother-
hood of Painters, Decorators and Paperhangers of America, AFL-
CIO, is not entitled, to force or require Bishopric and/or Falstaff to
assign the above-mentioned disputed work to painters currently repre-
sented by it.
2. Within 10 days from the date of this Decision and Determination
of Dispute, Local 585 of the Brotherhood of Painters, Decorators and
Paper Hangers of America, AFL-CIO, shall notify the Regional Di-
rector for the Twenty-third Region, in writing, whether or not it will
refrain from forcing or requiring Bishopric and/or Falstaff by means
proscribed by Section 8(b) (4) (i) and (ii) (D) to assign the work in
dispute to its members or to employees classified as painters who are
represented by it rather than to the employees of Bishopric Products
Company, currently represented by the International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
America, and its Local 12.
1. Posner, Inc.; Posner Distributing Corp.; and Posner Beauty
and Barber Supply Corp. and District 65, Retail , Wholesale
and Department Store Union , AFL-CIO. Case No. 2-CA-7270.
February 18, 1963
SUPPLEMENTAL DECISION AND ORDER
On December 3, 1962, Trial Examiner Lloyd Buchanan issued his
Supplemental Intermediate Report in the above-entitled matter, find-
ing that employees Simpson and Moore had engaged in such mis-
conduct during the course of a strike as to warrant the Respondent's
refusal to reinstate them.' Thereafter, exceptions to the Supplemental
Intermediate Report and a supporting brief were filed by the General
Counsel and adopted by the Union.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
'On October 30, 1961 , the Board issued its Decision and Order herein ( 133 NLRB
1567 ). On July 3, 1962, the United States Court of Appeals for the Second Circuit
handed down its opinion ( 304 F. 2d 773) enforcing the Order except as to Marcus
Morales , Samuel L . Simpson, and Edgar Moore, and by its decree dated July 16, 1962,
remanded the case for further proceedings consistent with the said opinion Pursuant
thereto, the Board directed supplemental proceedings as recited in the Supplemental
Intermediate Report.
140 NLRB No. 128.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the supplemental hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the entire record in this case, including the Supplemental Inter-
mediate Report and the exceptions and brief, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the following modification :
Because it was clear that, with the exception of Simpson and Moore,
the Respondent had offered reinstatement to all employees named in
the Board's Order of October 30, 1961, but as it did not appear that
they had been made whole, the Trial Examiner recommended the is-
suance of a new order identical with the prior Order in all respects
except that he omitted the reinstatement provision and directed the
payment of interest on the backpay due to the seven employees to
whom the offer had been made. We find it inappropriate to modify
our Order to this extent, inasmuch as the court remanded the pro-
ceeding to the Board for a limited purpose and enforced it in all
other respects. Accordingly, we do not adopt the recommended order
set forth in the Supplemental Intermediate Report, but shall amend
the original Order by deleting the names of Edgar Moore and Samuel
L. Simpson and dismissing the complaint as to them.
[The Board amended the Board's Order of October 30, 1961, by
deleting from section 2(a) thereof and from paragraph 3 of the
Appendix thereto the names of Edgar Moore and Samuel L. Simpson,
and dismissed the complaint insofar as it alleges that the Respondent
unlawfully refused to reinstate Edgar Moore and Samuel L.
Simpson.]
SUPPLEMENTAL INTERMEDIATE REPORT
Pursuant to decree of the Circuit Court of Appeals for the Second Circuit, issued
on July 16, 1962, the opportunity is now mine, in recommending a remedy, to avoid
a fragmentized approach and to consider the entire situation in this proceeding. An
unlawful refusal to reinstate Marcus Morales, Samuel L. Simpson, and Edgar Moore,
among others, has heretofore been found,' and the recommendation adopted that
reinstatement be offered to them with backpay from the date of request to return
to work. Simultaneously the Board found 2 that these three had been guilty of vio-
lence and threats of violence during the course of a strike. But these findings were
made in a separate proceeding, and the latter, which under Board decisions would
constitute a defense and possible bar to reinstatement, could not be considered by
this Trial Examiner and were not applied by the Board.
Despite the fact that this proceeding involving discrimination by the Company
has not been consolidated 3 with that in which the Union and various employees
were found to have engaged in threats and violence, the circuit court has remanded
this case to the Board for further proceedings in accordance with the court's opinion
of July 3, 1962, to afford the Company an opportunity to present a defense with
respect to the misconduct of Morales, Simpson, and Moore.
1133 NLRB 1555, 1567.
2 Supra, at 1555,1556,1561-1562,1565.
3 Supra, at 1567, footnote 2.
I. POSNER, INC., ETC. 1315
Citing the court's decree of July 16, 1962, the Board on August 16, 1962, ordered
that the record be "reopened and that a further hearing be held before Trial Exam-
iner Lloyd Buchanan for the limited purpose of permitting the Respondent to assert
any defenses it may wish to raise with respect to Marcus Morales, Edgar Moore, and
Samuel L. Simpson, based on the Board's findings in District 65, Retail, Wholesale
and Department Store Union, AFL-CIO (I. Posner, Inc.), 133 NLRB 1555, and
permitting the other parties to assert their positions as to any such defenses." In
view of the court's remand and that Order of the Board, the Union's asserted objec-
tion that the defense was not timely raised was rejected at this supplemental hearing,
which was held in New York City on October 15, 1962.
The findings of the Board in this case and in Case No. 2-CB-2669 stand; it is not
for me to reconsider them. The Company discriminatorily refused to reinstate
Vernon Butler, Robert and Ronald Bell, Freddie Allen, Gerald Mussenden, and
James D. Johnson when they terminated their strike and requested reinstatement.
While the Company also refused to reinstate Morales, Simpson, and Moore, these
three committed threats and violence in the course of the strike, and such acts
are to be weighed as a defense and a bar to any remedy in their favor.
Specifically, it has been found (as detailed in the proceeding against the Union)
that Morales and Simpson threatened employee Gaines with bodily harm; that
Morales similarly threatened employees Santiago and Ramos; that Simpson, accom-
panied by Moore, threatened to kill Posner; and that Moore attacked Posner. The
Company does not claim that Morales' acts warrant refusal to reinstate him. In fact,
distinguishing, as we shall soon see, between his conduct and that of Simpson and
Moore, it offered reinstatement to Morales and the six. These offers were recited
in a letter dated November 21, 1961, as having been made on November 13. The
nature and circumstances of the alleged offers of November 13 were not explored
or indicated on the record.
On the other hand, with respect to Simpson's and Moore's acts, I find that the
threats and violence described and found in Case No. 2-CB-2669 warrant refusal
to reinstate. But we must also consider whether, in offering reinstatement to Morales,
the Company condoned the violative acts so that it could not lawfully refuse to rein-
state Simpson and Moore. Here consideration must be given to the difference in
nature, quality, or degree between Morales' acts and those of Simpson and Moore.
It cannot be said that the distinction which Posner, the Company's active head,
made is unreal or insufficient. Posner clearly and without contradiction, either in
the prior findings or at this hearing, testified that Morales had never taken action,
by assault or threat, against him personally, whereas each of the other two (and
they alone) had, as the Board has found; and it was Posner who decided whether
to condone any acts. The Company at no time condoned threats or violence against
Posner himself. Regardless of its own evaluation of the relative seriousness of the
respective acts (some directed against Posner, some against employees), or because
of such evaluation, it cannot be found that the Company intended to or did dis-
criminate unlawfully or interfere with lawful concerted activities in refusing to rein-
state Simpson and Moore while offering reinstatement to Morales. Not only is the
alleged condonation not clear and unmistakable; it is not apparent.
Posner testified here that the Company replied to the Union's request for rein-
statement in February 1960, but that in its reply it did not raise the defense of mis-
conduct. What Posner did say in such reply or whether it was more than he testified
to at the earlier hearing, we do not know. It appears also that he never did tell
the Union that he refused to reinstate Simpson and Moore because of their mis-
conduct. But such omission does not indicate or necessarily reflect condonation:
the Company had rested on the defense, which was overruled, that there had been
no proper application for reinstatement, and it had not reached or raised this further
or alternative defense of threats and violence. The offenses of these three being
significantly different, the offer of reinstatement to Morales was not condonation of
the threats and violence by Simpson and Moore, nor is it to be construed as such; and
I so find
Not to overlook the General Counsel's argument, she correctly states that
8(b) (1) (A) conduct is not necessarily ground for refusal to reinstate. But Simpson's
and Moore's acts constituted such ground. I should, of course, be constrained to
hold otherwise had the Board so held. But the facts in Stewart Hog Ring Company,
Inc.,4 and Schott Metal Products Company,5 both cited by the General Counsel, are
clearly different from those here.
4131 v1,TB 310, 312-313.
6128 NLRB 415
681-492-63-vol. 140-84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for Atlas Linen and Industrial Supply ,6 cited by the General Counsel to support
the argument of condonation , we have seen that in the instant case there was no
presumed condonation by failure to cite the violative acts while other defenses were
asserted to justify the refusal to reinstate . Indeed , in Atlas Linen, not only were the
employees told that they could not be taken back "solely" because they had been
replaced , but they were several times promised that they would be recalled when
work became available for them . While the Company's position here that there was
no proper request has been found to have been erroneous and violative , such finding
does not embrace or suggest a waiver or condonation of the threats and violence.
The findings heretofore made and adopted are incorporated herein by reference
and are supplemented by the findings hereinabove made . The conclusions of law
heretofore made and adopted are also herein incorporated by reference . The parties
recognize that reinstatement has been offered to all except Simpson and Moore. It
does not appear that any of the seven has been made whole. Interest at the rate
of 6 percent per annum shall be added to the backpay due, to be computed in the
manner set forth in Isis Plumbing & Heating Co.7
[Recommendations omitted from publication.]
6130 NLRB 761, 7181.
7 138 NLRB 716.
Delsea Iron Works, Inc. and Local 676, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America. Case No. 4-CA-2607. Febmuuary 20, 1963
DECISION AND ORDER
Upon charges duly filed on April 19, 1962, by Local 676, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, against Delsea Iron
Works, Inc., herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Director for the
Fourth Region, issued a complaint alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) and (5) and Section
2(6) and (7) of the Act. Copies of the charge, the complaint, and
notice of hearing were duly served upon the Respondent and the
Charging Party.
The complaint alleges that since April 4, 1962, Respondent has
refused to bargain with the Union, which was certified on or about
March 29, 1962, in a unit consisting of all production and maintenance
employees and all truckdrivers at Respondent's Millville, New Jersey,
plant, excluding office clerical employees, guards, and all supervisors
as defined in the Act. On May 23, 1962, Respondent filed an answer
which was duly served upon the General Counsel and the Charging
Party. In its answer Respondent admits that it has refused and is
refusing to bargain, but asserts, as an affirmative defense, that the
Union's certification is invalid.
On June 19, 1962, the parties entered into a stipulation by which
they waived a hearing before a Trial Examiner , and the issuance of an
140 NLRB No. 108.