Mystic Shop N Bag

MYSTIC SHOP N BAG Joseph S. Teschko, Inc. t/a Mystic Shop N Bag and Retail Clerks Union Local 1358, Retail Clerks In- ternational Association, AFLCIO. Case 4-CA- 8737 January 6, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on June 13, 1977, by Retail Clerks Union Local 1358, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Joseph S. Teschko, Inc. t/a Mystic Shop N Bag, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 4, issued a com- plaint and notice of hearing on July 29, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. Respondent failed to file an answer to the complaint. On September 12, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based on Respon- dent's failure to file an answer as required by Sec- tions 102.20 and 102.21 of the National Labor Rela- tions Board's Rules and Regulations, Series 8, as amended. An order transferring proceeding to the Board and Notice To Show Cause was issued by the Board on September 19, 1977. Respondent has filed no response to the Notice To Show Cause and, ac- cordingly. the allegations of the Motion for Summary Judgment stand uncontroverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in 234 NLRB No. 17 the complaint, if no answer is filed, or any allega- tion in the complaint not specifically denied or explained in an answer filed, unless the respon- dent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint which issued on July 29, 1977, was served on Respondent by registered mail and states that "the Respondent shall file ... an answer to said Complaint within 10 days from the service thereof and that, unless it does so, all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." According to the uncontroverted allegations of the Motion for Summary Judgment, Respondent's President, John Teschko, by telephone communication on August 17, 1977, refused to assure counsel for the General Counsel that an answer to the complaint would be filed. As noted above, Respondent did not file an answer to the complaint, nor did it file a response to the Notice To Show Cause. No good cause to the contrary having been shown, in accordance with the rules set forth above, the allegations of the complaint are deemed to be admitted and are found to be true. We shall, accordingly, grant the Motion for Summa- ry Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and ex- isting by virtue of, the laws of the State of New Jer- sey and is engaged in the operation of a grocery store at its facility located in West Tuckerton, New Jersey. During the past year, Respondent had gross revenues valued in excess of $500,000 and purchased goods valued in excess of $50,000 directly from points out- side the State of New Jersey. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, an employer engaged in commerce within the me- aning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local 1358, Retail Clerks In- ternational Association, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 115 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Independent 8(a)(1) Violations On or about June 7 and 9, 1977, Respondent, through Joseph Teschko, at its West Tuckerton, New Jersey, facility, threatened to close its business if its employees selected the Union as their collective-bar- gaining representative. Accordingly, we find that by the aforesaid conduct Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed in Section 7 of the Act, and by such con- duct Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act. B. The 8(a)(3) Violation On or about June 9, 1977, Respondent terminated employee Leonard Kalos because of his union activi- ties and, at all times since then, Respondent has failed and refused, and continues to fail and refuse, to reinstate Leonard Kalos to his former or substan- tially equivalent position of employment. Accordingly, we find that, by the aforesaid conduct Respondent has discriminated, and is discriminating, in regard to hire or tenure of employment or any term or condition of employment to discourage membership in any labor organization, and by such conduct Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having also found that Respondent has discrimi- natorily terminated and has refused to reinstate em- ' See, generally, Isis Plumbing & Heating Company, 138 NLRB 716 (1962). ployee Leonard Kalos to his former or substantially equivalent position, we shall order Respondent to offer him immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement, less net earn- ings, with backpay and interest thereon to be com- puted in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).1 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Joseph S. Teschko, Inc. t/a Mystic Shop N Bag, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local 1358, Retail Clerks International Association, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By the conduct described in section III, above, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guar- anteed in Section 7 of the Act, and has discriminated, and is discriminating, in regard to hire or tenure or terms or conditions of employment to discourage membership in a labor organization, and by such conduct Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Jo- seph S. Teschko, Inc. t/a Mystic Shop N Bag, West Tuckerton, New Jersey, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Threatening to close its business if its employees select Retail Clerks Union Local 1358, Retail Clerks International Association, AFL-CIO, or any other 116 MYSTIC SHOP N BAG labor organization, as their collective-bargaining rep- resentative. (b) Discouraging membership in, or activities on behalf of, Retail Clerks Union Local 1358, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discriminatorily dis- charging or by otherwise discriminating in regard to hire or tenure or terms or conditions of employment of any of its employees because they join or assist the above-named Union, or any other labor organiza- tion. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Leonard Kalos immediate and full rein- statement to his former position, or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimi- nation against him in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all oth- er records necessary to analyze the amount of back- pay due under the terms of this Order. (c) Post at its West Tuckerton, New Jersey, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Re- gional Director for Region 4, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to close our business if our employees select Retail Clerks Union Local 1358, Retail Clerks International Association, AFL-CIO, or any other labor organization, as their collective-bargaining representative. WE WILL NOT discourage membership in, or activities on behalf of, Retail Clerks Union Local 1358, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discriminatorily discharging or by otherwise dis- criminating in regard to hire or tenure or terms or conditions of employment of any of our employ- ees because they join or assist the above-named Union, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Na- tional Labor Relations Act, as amended. WE WILL offer Leonard Kalos immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiv- alent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, plus interest. JOSEPH S. TESCHKO, INC. T/A MYSTIC SHOP N BAG 117