Grainger Brothers Co.

GRAINGER BROTHERS CO. 609 discriminatee to forfeit his right to reinstatement the misconduct engaged in must be "so extreme as to render him unfit for further service." The court in N.L.R.B. v. Kelco Corporation, 178 F. 2d 578 (C.A. 4), stated, inter alia, "It is not the fact that employees have been convicted of crime that renders them ineligible for rein- statement but the fact that they have been guilty . of unlawful conduct which would make their presence undesirable because of the disruptive effect which it would have upon the employer's business." Using the rationale of these two decisions as a guideline, I would doubt that Moffis' conduct was "so extreme as to render him unfit for further service," or that his reinstatement would have a "disruptive effect . . upon the employer's business." Years have passed since Moffis engaged in the conduct complained of; whether he has changed in, those years I do not know; I only know that as a witness he impressed me as quiet, frank, cooperative, and ,earnest. His participation in the vandalism of March 27, 1959,- while not to be condoned, does not in my view condemn him as one permanently afflicted with a tendency toward reckless and irresponsible acts , and with former Plant Manager Mattson, now serving the State in a quasi-official capacity, I doubt that his reinstate- ment would give rise to any serious personnel problems. As the Board has applied ,its policy in actual cases, however, the weight of these decisions constrains me to find, as I do, that it 'would not effectuate the policies of the Act to order Moffis' reinstatement, or backpay on and after-March 27, 1959.2 It may be that under the rather unusual circumstances of this case the Board may consider that the denial ,of backpay alone is sufficient to accord with a proper effectuation of the Act. 2 To meet the contingency of being reversed by the Board on the issue of reinstatement and backpay, I make these findings on the General Counsel 's backpay specifications. There was no willful neglect by Moffis in seeking, or retaining , gainful employment. On the entire evidence I am convinced that he made all reasonable efforts in these respects. It is true that he might have been gainfully employed during the period of his farming venture, a venture that failed , but I am convinced that this venture was undertaken in good faith and provides no reasonable basis for denying him backpay during the period of its duration. In short, in my opinion based upon the entire evidence , the Respondent has not success- fully attacked the General Counsel's backpay specifications, as amended at the remand hearing. Grainger Brothers Co. and , Teamsters, Chauffeurs, Warehouse- men and Helpers Union Local No. 608, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Petitioner. Case No. 17-RC-4302. April °L, 1964. • . DECISION ON REVIEW AND ORDER On November 26; 1963, the Regional Director for the Seventeenth Region issued a Decision and Direction of Election in the above- entitled proceeding. Thereafter, the Employer and the Intervenors, Retail, Wholesale and Department Store' Union, AFL-CIO, and its affiliate, Warehousemen and Drivers' Local Union No. 1771, Retail Wholesale and Department Store Union, AFL-CIO, in accordance with Section 102.67 of the Board's Rules and Regulations, filed with- the Board timely requests for review of such Decision and Direction of Election on the ground, inter alia, that the Regional Director er- roneously found that the contract executed between Grainger Bro- thers Co., hereinafter called Grainger, and the Intervenors herein was not a bar to the petition. The Petitioner, on December 16, 1963, filed its opposition. ' 146 NLRB No. 75. _ 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board, by telegraphic order dated January 2, 1964, granted' the requests for review only insofar as they raise issues with respect to the Regional Director's determination that the contract -was re moved as a bar, and stayed, the election pending decision on review. In all other respects the requests for review were denied. There-- after, all the parties filed supporting briefs. The Board 1 has considered the entire record in this case with re- spect to the Regional Director's determination under review, and for the reasons set forth below finds, contrary to the Regional Director, that the contract constitutes'a bar. The petition herein was filed by the Teamsters on October 22, 1963, seeking a unit of warehousemen and drivers at Grainger's- Lincoln land Fairbury, Nebraska, warehouses. Grainger and the Intervenors contended at the hearing that the petition was barred by a contract executed by Grainger and the Intervenors on February 3,. 1962, effective from February 4, 1962, to May 2, 1965. The Regional Director held that the contract was not a bar to the petition because in October 1962, Grainger was purchased by The Fleming Co., In- corporated, which never entered into an express written agreement with the Intervenors adopting the existing contract. The record shows that Grainger, a Nebraska corporation, and the Intervenors have entered into successive collective-bargaining agree- ments for approximately 17 years embracing a unit of warehousemen and drivers, the last of which is the contract urged as a bar herein. On or about October 14, 1962, Grainger became a wholly owned sub- sidiary of The Fleming Co., Incorporated, •a Kansas corporation. On or about the same date the corporate name of Grainger was changed from "Grainger Brothers Company" to "Grainger Brothers Co."' Thereafter, the operations at the Lincoln and Fairbury warehouses continued without change. Grainger continued to serve the same cus- tomers, to handle the same merchandise, and retained the same work force, supervisors, equipment, physical location, and operating pro- cedures, as before the change in corporate ownership and the slight change in the corporate name. Both parties to the 1962 collective- bargaining agreement continued to observe and effectuate its terms. and the conditions of employment set forth therein. Thus, in the summer of 1963, the Intervenors presented grievances of 15 to 20 employees in writing, and the Employer resolved them to the satis- faction of all parties, pursuant to the contract; since October 14, 1962,, the Employer has continued to deduct and remit dues to the Inter- venors under the checkoff clause; the Intervenors have continued to' send the Employer revised lists of stewards as changes have occurred; and job and run bids have been filed under the contract. 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [,Chairman McCulloch and+ Members Leedom and Fanning]. BANNON MILLS, INC. 611 The sole question presented on review is whether or not an express .written ,agreement of adoption either by Grainger Brothers Co., or by The Fleming Co., Incorporated, was necessary in order for the above-mentioned 1962 contract to operate as abar to the instant peti- tion, which, as shown above, was otherwise untimely filed 15 months before the third anniversary date of the agreement. It is uncon- troverted on the record that the changes in ownership and corporate name did not result in any significant changes in the nature of the 'operation, the management, or the composition of the contractual unit, or the stability of the existing bargaining relationship. Accord- ingly, we find that at all times material there has been no change in the employing enterprise and that, for purposes of this proceeding, the -present named employer is identical to the one that signed the 1962 contract 2 In these circumstances, we find that no written adoption of the 1962 contract was necessary for contract-bar purposes. As the instant petition was untimely filed with respect to the terminal date ,of the contract, we shall dismiss it. [The Board 'dismissed -the petition.] 2 See The M. B. Farrin Lumber Co., 117 NLRB 575. Bannon Mills, Inc. and International Ladies' Garment Workers Union, AFL-CIO, Local 108. Cases Nos. 4-CA-2705 and 4-CA- 2744. April 3, 1964 DECISION AND ORDER On August 15, 1963, Trial Examiner Thomas -S. Wilson issued his Intermediate Report in the 'above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, Respondent and the Charging Party filed excep- tions to the Intermediate Report and the General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the find- 146 NLRB No. 81.