Garden Fashions, Inc.

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garden Fashions, Inc., and Timely Sportswear, Inc. and Ollie Brabham. Case 2-CA-13104 November 7, 1974 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: DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Ollie Brabham, an individual, filed a charge on October 5, 1973, a first amended charge on January 9, 1974, and a second amended charge on January 22, 1974, which were duly served on Respondents Garden Fashions, Inc., and Timely Sportswear, Inc., hereafter called Garden and Timely. On the basis of these charges, the Regional Director for Region 2 of the National Labor Relations Board issued a com- plaint and an amended complaint on January 4 and 31, 1974, respectively, alleging, inter alga, that Re- spondents had engaged in and were engaging in un- fair labor practices within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended, by warning employees to refrain from giving assistance to the Blouse, Shirt and Sportswear Workers' Union, Local 23-25, ILGWU, herein called the Union, interrogat- ing employees concerning their membership in and activities on behalf of said Union, and has dis- charged the Charging Party and refused to reinstate her because she was a member of said Union and had engaged in other concerted activity for the pur- pose of collective bargaining and mutual aid and protection. The amended complaint further alleged that the charge and first and second amended charges had been served on Respondent personally and by registered mail. Thereafter, on May 3, 1974, counsel for the Gener- al Counsel filed with the Board in Washington, D.C., a Motion for Summary Judgment, alleging, inter alia, that Respondent, although requested to do so, had failed and refused to file an answer to the complaint and amended complaint, and moved that the Board issue a Decision and Order against Respondent, con- taining findings of fact and conclusions of law as alleged in the complaint, and issue an appropriate order remedying the unfair labor practices so found. The Board, on May 17, 1974, issued an order trans- ferring the proceedings before it and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent has filed no response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- Ruling on the Motion for Summary Judgment It appears from the uncontroverted allegations of the amended complaint and the Motion for Summa- ry Judgment and attached affidavits that Respon- dents Garden Fashions and Timely Sportswear are affiliated businesses with common officers, owner- ship, directors, and operators, and constitute a single integrated business enterprise. Respondents' alleged supervisor and agent, Bing Fin Chan a/k/a Barry Chan, is alleged to he the proper agent for service of process on Respondents, and on the basis of the un- controverted allegations of the Motion for Summary Judgment and the affidavit of the Charging Party, concerning Chan's capacity and status in Respon- dents, we so find.' The original charge was sent to Respondent Gar- den by registered mail to the address listed for both Garden and Timely on the current certificate of in- corporation on file with the county clerk in New York County. The envelope was returned marked "moved, left no address." Thereafter, according to the uncontroverted affidavit of a Board agent, on November 29, 1973, said Board agent personally served Respondent Garden with the charge by deliv- ering it to and leaving a copy thereof with Chan, who informed the Board agent of the name and address of Respondents' attorney. Following the issuance of the original complaint, a copy was sent to Respondent Garden by registered mail on January 4, 1974, but neither the return re- ceipt nor the complaint was returned. A copy was also sent by registered mail to Respondent's attor- ney. The first amended charge was filed on January 4, 1974, naming Respondent Timely, in addition to Re- spondent Garden, as committing the unfair labor practices alleged above. The scenario set forth above was reenacted to effect service of this charge, includ- ing the marking of the return envelope "moved, left no address" and the eventual personal service on Re- 1 The uncontroverted allegations of the Motion for Summary Judgment and the affidavit of the Charging Party establish that Chan , on behalf of both Respondents , interviewed, hired , and fired employees , signed payroll checks, negotiated and entered agreements with other manufacturers, devel- oped production schedules, and dealt with employee problems Analysis of this factual basis satisfies us that Chan was a responsible party in charge of a substantial phase of Respondents' operations sufficient to be a managing or general agent for service of process under sec 4(d)(3) of the Federal Rules of Civil Procedure , see Gottlieb v Sandia American Corporation, 452 F2d 510, 513 (CA 3), cert denied 404 U .S 938 ( 1971), Remington Rand, Inc v Knapp -Monarch Company, 139 F Supp 613 , 621 (D C Pa , 1956) 214 NLRB No. 102 GARDEN FASHIONS, INC. spondents by the Board agent. With minor varia- tions, it was repeated with each additional document, including the second amended charge, the amended complaint, and the instant Motion for Summary Judgment. On January 29, 1974, Respondents' attorney sent the Regional Office a letter requesting, on behalf of the Respondents, that the hearing scheduled for Feb- ruary 4, 1974, be postponed. This request was grant- ed. On February 4, 1974, counsel for the General Counsel sent Respondents' attorney a letter request- ing a conference to discuss settlement of the charges contained in the amended complaint. The conference was held on February 8, 1974, and was attended by the attorney on behalf of both Respondents. No set- tlement was reached. On February 14, 1974, counsel for the General Counsel sent and had hand-delivered a letter to Re- spondents' attorney informing him that no answer to the complaint had been received. No answer was filed thereafter. On February 20, 1974, a prehearing conference was held before an Administrative Law Judge, at which Respondents' attorney appeared for both Re- spondents and requested an adjournment on their behalf to investigate, as he had not yet been retained by the Respondents. The Administrative Law Judge informed him that he was listed as attorney of re- cord, and that, until he was prepared to enter an ap- pearance on behalf of Respondents, the Administra- tive Law Judge could not so accept a representation on their behalf. The attorney informed the Adminis- trative Law Judge that he could not so appear, and was advised by the Administrative Law Judge that, in view of the failure to answer, a "Motion for De- fault of Judgment" appeared appropriate. The record additionally contains a certification by the Regional Director that no answer has been filed, and no request for an extension of time to answer has been made or granted. From these uncontroverted allegations and affida- vits, it appears that Respondents have been duly no- tified of the proceedings against them, and properly served with the relevant documents pertaining there- to under the Board's Rules and Regulations and the Federal Rules of Civil Procedure.' Respondents have not answered or otherwise responded thereto, al- though requested to do so. Rule 102.20 of the Board's Rules and Regulations, Series 8, as amended, provides: 2 Rule 102 111 of the Board's Rules and Regulations, Series 8, as amend- ed, Rule 4(d)(3) Federal Rules of Civil Procedure 767 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 com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions 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 ad- mitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The amended complaint served on Respondents stated ". . . Garden and Timely shall each file with the Regional Director, Region 2, acting in this matter as agent of the National Labor Relations Board, an original and four (4) copies of an answer to the said Amended Complaint within ten (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 by it to be true and may be so found by the Board." In view of the Respondents' failure and refusal to answer, and no good or other cause having been shown therefore, the uncontroverted allegations of the complaint are deemed admitted and found to be true in accordance with the rule set forth above. Accordingly, the General Counsel's Motion for Summary Judgment is granted. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondents, Garden Fashions, Inc., and Timely Sportswear, Inc., are New York corporations en- gaged in the manufacture of women's blazers and other garments and apparel. Respondents are affili- ated businesses with common officers, ownership, di- rectors, and operators, and constitute a single inte- grated business enterprise. Respondents are and at all times material herein have been members of Greater Blouse, Shirt & Undergarment Association, Inc., which is an organization of employers engaged in the manufacture of various garments in the appar- el and clothing industry and performs the function of negotiating and administering collective-bargaining agreements on behalf of its employer-members, in- cluding Respondents' agreements with labor organi- 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zations. During the past year, which is representative of their operations annually, the employer-members of the Association, in the course and conduct of their operations generally, manufactured and sold prod- ucts valued in excess of $500,000 and received direct- ly from suppliers located outside the State of New York raw fabrics and related apparel products val- ued in excess of $50,000. We find, on the basis of the foregoing, that Re- spondents are and have been at all times material herein employers 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 j uris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Blouse, Shirt and Sportswear Workers' Union, Lo- cal 23-15, ILGWU, is, and at all times material here- to has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Independent 8(a)(1) Violations In or about the months of April, May, and June, 1973, Respondents, at their premises, warned and di- rected their employees to refrain from giving any as- sistance or support to Blouse, Shirt and Sportswear Workers' Union, Local 23-25, ILGWU. On or about July 18 and at various dates thereafter, Respondents, at their premises, interrogated their employees con- cerning their membership in, activities on behalf of, and sympathy in and for said Union. B. The 8(a)(3) Violations On or about July 18, 1973, Respondents dis- charged their employee Ollie Brabham, and thereaf- ter failed and refused to reinstate or offer reinstate- ment to said employee, because said employee was a member of and assisted Local 23-25 and engaged in other concerted activity for the purpose of collective bargaining and mutual aid and protection. Accordingly, we find that by the aforesaid conduct as set forth in sections III, A and B, above, Respon- dents have interfered with, restrained, and coerced their employees in the exercise of the rights guaran- teed them under Section 7 of the Act, and have dis- criminated in regard to the terms and conditions of employment of their employee, Ollie Brabham, and by such conduct, Respondents have engaged in and are 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 ON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with their 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 thereof. V. THE REMEDY Having found that Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that Respondents committed un- fair labor practices by interfering with the rights guaranteed employees by Section 7 of the Act, and we shall order them to cease and desist therefrom. We have also found the Respondents discrimina- torily discharged and refused to reinstate or offer to reinstate employee Ollie Brabham, and we shall or- der that said employee be offered reinstatement to her former position or a substantially equivalent po- sition. We shall also order that Respondents make said employee whole for any loss of earnings suffered because of the discrimination against her. Backpay shall be based on the earnings which she would nor- mally have received from the date of her discharge to the date of Respondents' offer of reinstatement, less any net interim earnings, and shall be computed on a basis set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Garden Fashions, Inc., and Timely Sportswear, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Blouse, Shirt and Sportswear Workers' Union, Local 23-25, ILGWU, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III, above, Re- spondents have interfered with, restrained, coerced, and discriminated against employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section GARDEN FASHIONS, INC. 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 Re- lations Board hereby orders that the Respondents, Garden Fashions, Inc., and Timely Sportswear, Inc., New York, New York, and their officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Warning and directing their employees to re- frain from giving any assistance or support to Blouse, Shirt and Sportswear Workers' Union, Local 23-25, ILGWU, or any other labor organization. (b) Interrogating employees concerning their membership in, activities on behalf of, and sympathy in and for the Blouse, Shirt and Sportswear Workers' Union, Local 23-25, ILGWU, or any other labor or- ganization. (c) In any other manner interfering with, restrain- ing, or coercing employees in their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. (d) Discouraging membership in, or activities on behalf of, Blouse, Shirt and Sportswear Workers' Union, Local 23-25, ILGWU, or any other labor or- ganization, by discriminatorily discharging or termi- nating employees, or by otherwise discriminating in regard to the hire or tenure of their employees be- cause they joined or assisted the above-named Union, or engaged in other concerted activity for the purposes of collective bargaining or mutual aid and protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to reinstate employee Ollie Brabham to her former position or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges. (b) Make whole employee Ollie Brabham for her losses suffered by reason of the discrimination against her as set forth in the section of this Decision entitled "The Remedy." (c) 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. (d) Post at their 907 Canal Street, New York, New York, facility copies of the attached notice marked 769 "Appendix." 3 Copies of said notice, on forms pro- vided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply here- with. 3In 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 warn or direct employees to re- frain from giving any assistance or support to Blouse , Shirt and Sportswear Workers' Union, Local 23-25, ILGWU, or any other labor orga- nization. WE WILL NOT interrogate employees concern- ing their membership in, activities on behalf of, or sympathy for the Blouse, Shirt and Sports- wear Workers' Union, Local 23-25, ILGWU, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL NOT discourage membership in, or activities on behalf of, Blouse, Shirt and Sports- wear Workers' Union, Local 23-25, ILGWU, or any other labor organization, by discriminatori- ly discharging or terminating employees or by otherwise discriminating in regard to the hire or tenure of employees because they joined or as- sisted the above-named labor organization, or engaged in other concerted activity for the pur- poses of collective bargaining or mutual aid and protection. WE WILL offer to reinstate employee Ollie Brabham to her former position or, if that job 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no longer exists, to a substantially equivalent po- lawful discrimination against her. sition, without prejudice to her seniority or other rights and privileges . GARDEN FASHIONS, INC, WE WILL make whole employee Ollie Brab- AND TIMELY SPORTSWEAR, ham for her losses suffered by reason of the un- INC