Reliable Carpet Co.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francis Kositz d/b/a Reliable Carpet Company and Warren Heikkila. Case 7-CA-10280 Section 102.20 of the Board's Rules and Regulations, Series 8, as amended. Subsequently, on June 15, 1973, the Board issued an order transferring the November 26, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on April 6, 1973, by Warren Heikkila, an individual, herein called the Charging Party, and duly served on Francis Kositz , d/b/a Reliable Carpet Company, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on May 14, 1973, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges, in substance, that on or about February 6, 1973, the Respondent discharged War- ren Heikkila, the Charging Party, and since that date has failed and refused, and is failing and refusing, to reinstate the Charging Party to his former position of employment because the Charging Party had at- tempted to enforce the collective-bargaining agree- ment between United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Carpenters District Council, Detroit Resilient Floor Decorators Local Union No. 2265, herein called the Union, and the Respondent; because the Charging Party had complained of the quality of representation received by employees of the Respondent from the Union with respect to the Union's enforcement of the collective-bargaining agreement with Respondent and the Union's processing and handling of griev- ances of employees of the Respondent; and because the Charging Party had engaged in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. By these acts, the complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act. On June 11, 1973, counsel for the General Counsel filed directly with the Board motions for transfer and continuance of the case before the Board and for summary judgment, with attachments, based on Respondent's failure to file an answer as required by proceeding to the Board and a notice to show cause why the General Counsel's motion should not be granted. The Respondent failed to file a response to the notice to show cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 as follows: 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 the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent 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 and notice of hearing served on the Respondent specifically stated that unless an answer to the complaint was filed within 10 days from the service thereof "all of the allegations in the Com- plaint shall be deemed to be admitted true and may be so found by the Board." Further, on June 1, 1973, the Regional Director directed a letter to the Respondent which served notice on it that unless it filed an answer to the complaint in this proceeding by June 5, 1973, counsel for the General Counsel would file a Motion for Summary Judgment. To date the Respondent has failed to file an answer to the complaint and has given no reason for its failure to do so. As the Respondent had not filed an answer within 10 days from the service of the complaint, nor within the extended time afforded it by the Regional Director, and as no good cause to the contrary has been shown, in accordance with the rule set forth above, the allegations of the complaint herein are 207 NLRB No. 71 RELIABLE CARPET COMPANY 545 deemed to be admitted to be true and are so found to be true.' We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material herein, the Respondent has maintained its only office and place of business at 4210 13th Street in the city of Wyandotte and State of Michigan, herein called the Wyandotte place of business. The Respondent is, and has been at all times material herein, engaged in the commercial and contract installation of carpet, linoleum, and related products. The Wyandotte place of business located at Wyandotte, Michigan, is the only facility involved in this proceeding. During the year ending December 31, 1972, which period is representative of its operations during all times material herein, the Respondent, in the course and conduct of its business operations, performed carpet and linoleum installation services valued in excess of $500,000, of which services valued in excess of $50,000 were performed for Sears, Roebuck and Company, which annually receives gross revenue from its Michigan retail operations in excess of $500,000 and which annually purchases in excess of $50,000 in value of goods and materials from suppliers located outside the State of Michigan which are shipped directly to its Michigan locations. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Carpenters District Council, Detroit Resilient Floor Decorators Local Union No. 2265, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On or about February 6, 1973, the Respondent discharged Warren Heikkila, the Charging Party, and since that date has failed and refused, and is failing and refusing, to reinstate him to his former position of employment because he had attempted to enforce the collective-bargaining agreement between the Union and the Respondent; because the Charg- ing Party had complained of the quality of represent- ation received by employees of the Respondent from the Union with respect to the Union's enforcement of the collective-bargaining agreement with the Respondent and the Union's processing and han- dling of grievances of employees of the Respondent; and because the Charging Party engaged in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion. Accordingly, by discharging and failing and refusing to reinstate Warren Heikkila, the Charging Party, to his former position of employment for the reasons alleged in the complaint, we find that the Respondent did discriminate, and is discriminating, in regard to the hire or tenure or terms or conditions of employment of its employees, thereby encourag- ing membership in a labor organization, and by such conduct the Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 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, intimate, 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 com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) 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 found that the Respondent discriminatorily discharged Warren Heikkila, the Charging Party, and discriminatorily failed and refused to reinstate him, we shall order that the Respondent offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of such discrimination, by payment of a sum of money equal to that which he normally would 1 Jerry C. Wilson, Curtis Wilson and Rodney V. Wilson d/b/a Wilson & Sons, 193 NLRB 350, and cases cited therein 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have earned as wages from the date of discharge to the date of said offer of reinstatement, less his net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Francis Kositz d/b/a Reliable Carpet Compa- ny is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Carpenters District Council, Detroit Resilient Floor Decorators Local Union No. 2265, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging and failing and refusing to reinstate Warren Heikkila, the Charging Party, to his former position of employment because he had attempted to enforce the collective-bargaining agree- ment between the Union and Respondent; because the Charging Party had complained of the quality of representation received by employees of the Respon- dent from the Union with respect to the Union's enforcement of the collective-bargaining agreement with the Respondent and the Union's processing and handling of grievances of employees of the Respon- dent; and because the Charging Party had engaged in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) 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. membership in or assistance to the Union, or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them 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 Warren Heikkila, the Charging Party, immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination 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 other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Wyandotte, Michigan, place of business copies of the attached notice marked "Appendix." 2 Copies of' said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable 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 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Francis Kositz d/b/a Reliable Carpet Company, Wyandotte, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging its employees, or refusing or failing to reinstate discharged employees to.their former positions, or by any other means discriminating in regard to their hire or tenure or terms or conditions of employment, in order to encourage employees' APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any of our employees, or refuse or fail to reinstate any discharged employees to their former positions, or by any other means discriminate in regard to their hire or tenure or terms or conditions of employment, in order to encourage employees' membership in or RELIABLE CARPET COMPANY assistance - to United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Carpenters District Council, Detroit Resilient Floor Decora- tors Local Union No . 2265, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Warren Heikkila immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent 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 as a result of the discrimina- tion against him. 547 FRANCIS KOSITZ D/B/A RELIABLE CARPET COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.