Eclectic Inc.

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eclectic Inc., and Its Officers and Agents, Frank Dawson and Marie Dawson and Walter A. White, Jr. Case 13-CA-12551 February 28, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a charge and amended charges filed on August 8, August 16, and October 10, 1973, respec- tively, by Walter A. White, Jr., an individual, herein called the Charging Party, and duly served on Eclectic Inc., and Its Officers and Agents, Frank Dawson and Marie Dawson, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint on October 26, 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)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, 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 (1) on or about July 15, 1973, and on various dates between August 2 and 7, 1973, at its Chicago, Illinois, plant, the Respondent, by its supervisors and agents, (a) interrogated its employees about their union activi- ties and desires, (b) told its employees that the plant could not be kept open and would be closed if the Union I got in and that no pay raises would be given until the union business was sorted out, (c) encour- aged and urged its employees to form their own labor organization, and (d) engaged in surveillance of an employee union meeting; (2) on or about August 6, 1973, the Respondent reduced the wages of four named laminating employees, and constructively discharged one of them, because of their union activities; (3) on or about August 8, 1973, the Respondent closed its plant and laid off some 30 named employees, as well as other employees whose names are unknown to the Regional Director but known to the Respondent, because of their union activities; (4) on or about August 15, 1973, it ceased production operations and laid off or discharged all of the named and unnamed employees above because of their union activities; and (5) on or about August 29, 1973, the Respondent moved its plant and offices from Chicago, Illinois, to Joliet, Illinois, ' Furniture Workers Industrial Union 420, affiliated with the Industrial Workers of the World. because of its employees' union activities and to discourage and stop such union activities, and, as a result of said move, terminated the named and unnamed employees above. By the aforesaid acts described above, the complaint alleges, the Respon- dent has violated Section 8(a)(1) and (3) of the Act. The Respondent failed to file an answer to the complaint. On November 19, 1973, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, based upon the Respondent's failure to file an answer as required by Sections 102.20, 102.21, 102.113, and 102.114 of the Board's Rules and Regulations. Subsequently, on December 4, 1973, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. The General Counsel thereafter filed a response to Notice To Show Cause, but the Respondent failed to do so. 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 issued on October 26, 1973, and duly served on the Respon- dent specifically states that, unless an answer were filed within 10 days from the service of the complaint, "all allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." Further, according to the 209 NLRB No. 40 ECLECTIC INC. Motion for Summary Judgment, counsel for the General Counsel on November 9, 1973, the day after the date on which the Respondent was required to file an answer to the complaint, called and spoke to Frank Dawson, president of Eclectic Inc., advising that an answer was overdue and asking whether he intended to file an answer. Mr. Dawson advised that he would do so whenever he could get to see his lawyer. Immediately after the telephone conversa- tion, counsel for the General Counsel sent a telegram to Frank Dawson at Eclectic Inc., informing him that if an answer were not received in the Regional Office by the close of business on November 13, 1973, he intended to move for summary judgment.2 Repeated efforts to reach Marie Dawson, secretary of Eclectic Inc., by telephone were unsuccessful.3 To date, neither an answer to the complaint nor a response to the Notice To Show Cause has been filed by either Eclectic Inc., Frank Dawson, or Marie Dawson. No good cause to the contrary having been shown, in accordance with the rules set forth above, the allegations of the complaint herein are 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 1 HE RESPONDENT Eclectic Inc., an Illinois corporation, maintained, prior to on or about August 29, 1973, its principal office and place of business in Chicago, Illinois, where it was engaged in the manufacture and sale of furniture. Since on or about August 29, 1973, Respondent has maintained its principal office and place of business in Joliet, Illinois. where it is now engaged in the same business operations. 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 Furniture Workers Industrial Union 420, affiliated with the Industrial Workers of the World, is a labor organization within the meaning of Section 2(5) of the Act. 2 In his response to the Notice To Show Cause, counsel for the General Counsel attached a copy of a letter dated November 16. 1973, from Mr Dawson requesting a 120-day postponement of the hearing date and a copy of the Regional Director's November 20, 1973, reply to that request advising III. UNFAIR LABOR PRACTICES 271 A. The Independent 8(a)(1) Violations On or about July 15, 1973, and on various dates between August 2 and 7, 1973, at its Chicago, Illinois, plant, the Respondent by its supervisors and agents (1) interrogated its employees about their union activities and desires, (2) told its employees that the plant could not be kept open and would be closed if the Union got in and that no pay raises would be given until the union business was sorted out, (3) encouraged and urged its employees to form their own labor organization, and (4) engaged in surveillance of an employee union meeting. Accordingly, we find that, by the aforesaid con- duct, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under Section 7 of the Act, and that, by such conduct, the Respondent thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. B. The 8(a)(3) Violations 1. On or about August 6, 1973, the Respondent reduced the wages of laminating employees Walter A. White, Jr., Willie Robertson, John Skworek, and Joseph Blecka, and then constructively discharged John Skworek, because of the union activities of its employees. 2. On or about August 8, 1973, Respondent closed its plant and laid off the following named employees, as well as other employees whose names are unknown to the Regional Director but well known to the Respondent, because of the union activities of its employees: Ernesto Barajas, Willis Benson , Milton Berry, Jr., Debra Carduin, Debra Ann Carlvin, Hector Cervantes, Leonia C. Davis, Charles Denham, Graham Frank, Stanley B. Gill, Edward Hankins, Margaret Hudson, Cleveland Hurms, Jr., Deborah Johnson, Curtis LeFlore. John LeFlore, Elijah Levi, Jr., Jose Maroquin, Thomas McKee, Arthur Muirhead, Darnell A. Palacio, Robert Powell, Willie Robertson, Chester Sendra, Leo A. Smith, Louis Smith, Fulton Spears, Glenda Stribling, Louis Watson, and Walter White. 3. On or about August 15, 1973, the Respondent closed its production operations and laid off or discharged its employees, including the aforesaid named and unnamed employees, because of the union activities of its employees. 4. On or about August 29, 1973, Respondent that the hearing had been postponed indefinitely and that a Motion for Summary Judgment had been filed 3 Counsel for the General Counsel advises that he was serving a copy of the Motion for Summary judgment at Marie Dawson's home address. 272 DECISIONS OF NATIONAL moved its plant and offices from Chicago, Illinois, to Joliet, Illinois, because of the union activities of its employees and to discourage and stop their union activities, as a result of which it terminated its employees including the named and unnamed employees above. Accordingly, we find that, by the aforesaid con- duct, the Respondent discriminated in regard to the terms and conditions of employment of its employ- ees, thereby discouraging membership in the Union or in any other labor organization and that, 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)(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. We have found that the Respondent closed its plant and production operations and moved from Chicago, Illinois, to Joliet, Illinois,4 because of its employees' union activities and in order to discour- age and stop such activities, and that, as a result, the Respondent terminated its employees. This constitut- ed a clear violation of Section 8(a)(3) of the Act. In order to meaningfully remedy this wrong, and to effectuate the policies of the Act, we shall adopt the following alternative remedies requested by counsel for the General Counsel which we conclude are appropriate: 1. We shall order the Respondent to reopen its former plant in Chicago, Illinois, and offer to all its employees, named and unnamed (see sec. III, B, supra), discriminatorily terminated on or about August 8, 1973,5 reinstatement to each of them to his or her former or substantially equivalent positions, 4 We take official notice of the fact that the distance between the Respondent's old and new location is approximately 35 miles 5 Including John Skworek who was constructively discharged on August 6, 1973. The names of unidentified employees and their amounts of backpay LABOR RELATIONS BOARD without prejudice to his or her seniority or other rights and privileges. We shall also order that Respondent make them whole for any loss of earnings suffered because of its discrimination against them. Backpay shall be based upon the earnings which they normally would have received from the date of their discharge to the date of Respondent's offer of reinstatement, less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing & Heating Co., 138 NLRB 716.6 2. In the event that the Respondent does not resume its Chicago, Illinois, operations, we shall order that it make whole the aforesaid discriminato- rily terminated employees for any loss of pay suffered by reason of the discrimination against them by paying to each of them a sum of money equal to the amount he or she would normally have earned as wages from August 8, 1973, when the Chicago, Illinois, plant was closed until such time as each secures, or did secure, substantially equivalent employment with other employers,7 computed in accordance with the Board's usual formula set forth in F. W. Woolworth Company, supra, and Isis Plumbing & Heating Co., supra. We shall also order that laminating employees Walter A. White, Jr., Willie Robertson, John Skwor- ek, and Joseph Blecka be made whole for the discriminatory reduction in wages instituted by the Respondent on August 6, 1973. Since the unfair labor practices committed by the Respondent were of a character which go to the very heart of the Act, we shall also order the Respondent to cease and desist from infringing in any manner upon the rights of employees guaranteed by Section 7 of the Act. We also expressly reserve the right to modify the backpay and reinstatement provisions of this Deci- sion and Order, if made necessary by a change of conditions in the future, and to make such supple- ments thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Eclectic Inc., and Its Officers and Agents, Frank Dawson and Marie Dawson, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. can be ascertained in compliance proceedings 6 Town & Country Mfg Co, Inc, and Town & Country Sales Co, Inc, 136 NLRB 1022, enfd 316 F.2d 846 (C.A. 5, 1963) 7 Bonnie Lass Knitting Mills, Inc, 126 NLRB 1396 ECLECTIC INC. 2. Furniture Workers Industrial Union 420, affiliated with the Industrial Workers of the World, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III, above, Respondent has interfered with, restrained, coerced, and discriminated against employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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 Relations Board hereby orders that Respondent, Eclectic Inc., and Its Officers and Agents, Frank Dawson and Marie Dawson, Joliet, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities and desires. (b) Telling its employees that the plant could not be kept open or would be closed if the Furniture Workers Industrial Union 420, affiliated with the Industrial Workers of the World, or any other labor organization, got in. (c) Telling its employees that no pay raises would be given until the union business, referring to the above-named Union, was sorted out. (d) Encouraging and urging its employees to form their own labor organization. (e) Engaging in surveillance of employee union meetings. (f) Discouraging membership in, or activities on behalf of, the Furniture Workers Industrial Union 420, affiliated with the Industrial Workers of the World, or any other labor organization, by its employees by discriminatorily laying off, discharg- ing, or terminating its employees; by closing its plant, ceasing production operations, and moving the plant away; and by discriminatorily reducing the pay of its employees, or by otherwise discriminating in regard to the hire or tenure of any of its employees because they joined or assisted the above-named Union, or any other labor organization, or engaged in other concerted activity for the purposes of collective bargaining or mutual aid and protection. (g) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 273 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole the employees listed in the Appendix of this Order, as well as other unnamed terminated employees, and the laminating employees Walter A. White, Jr., Willie Robertson, John Skwor- ek, and Joseph Blecka by reason of the discrimina- tion against them in the manner set forth in the section of this Decision 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 Joliet, Illinois, plant and mail to all its terminated employees copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees 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 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the Board reserves to itself the right to modify the backpay and reinstate- ment provisions of this Order, if made necessary by circumstances not now apparent. x 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 NO I interrogate our employees con- cerning their union activities and desires. WE WILL NOT tell our employees that the plant could not be kept open or would be closed if the Furniture Workers Industrial Union 420, affiliat- ed with the Industrial Workers of the World, or any other labor organization, got in. WE WILL NOT tell our employees that no pay 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raises would be given until the union business was sorted out. WE WILL NOT encourage and urge our employ- ees to form their own labor organization. WE WILL NOT engage in surveillance of employ- ee union meetings. WE WILL NOT discourage membership in, or activities on behalf of, the Furniture Workers Industrial Union 420, affiliated with the Industri- al Workers of the World, or any other labor organization, by our employees by discriminatori- ly laying off, discharging, or terminating our employees; by closing our plant, ceasing pro- duction operations, and moving the plant away; and by discriminatorily reducing the pay of our employees, or by otherwise discriminating in regard to the hire or tenure of any of our employees because they joined or assisted Furni- ture Workers Industrial Union 420, affiliated with the Industrial Workers of the World, or any other labor organization, or engaged in other concerted activity for the purposes of collective bargaining or mutual aid and protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole the following named employees, as well as those unnamed employees known to us but not to the Regional Director, for the discrimination practiced against them by their termination and by the closing of our plant on August 8, 1973. Ernesto Barajas Willis Benson Milton Berry, Jr. Debra Carduin Debra Ann Carlvin Hector Cervantes Leonia C. Davis Charles Denham Graham Frank Stanley B. Gill John LeFlore Elijah Levi, Jr. Jose Maroquin Thomas McKee Arthur Muirhead Darnell A. Palacio Robert Powell Willie Robertson Chester Sendra Leo A. Smith Edward Hankins Louis Smith Margaret Hudson Fulton Spears Cleveland Hurms, Jr. Glenda Stribling Deborah Johnson Louis Watson Curtis LeFlore Walter White WE WILL offer the above-named terminated employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges when we resume our Chicago, Illinois, operations or, alternatively, WE WILL make them whole until such time as they secure substantially equivalent employment with other employers. WE WILL also make whole laminating employ- ees Walter A. White, Jr., Willie Robertson, John Skworek, and Joseph Blecka for the discriminato- ry reduction of their pay on August 6, 1973. All our employees are free to become, remain, or to refrain from becoming or remaining, members of Furniture Workers Industrial Union 420, affiliated with the Industrial Workers of the World, or any labor organization. ECLECTIC INC., AND ITS OFFICERS AND AGENTS, FRANK DAWSON AND MARIE DAWSON (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, Everett McKinley Dirksen Building, Room 881, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.