Virgo Dress Co.

VIRGO DRESS COMPANY 565 Anthony Salerno, doing business as Virgo Dress Company and Local 259, International Ladies' Garment Workers' Union, AFL-CIO. Case 3-CA- 6672 March 2, 1977 DECISION AND ORDER 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. By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a charge filed on August 3, 1976, by Local 259, International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, and duly served on Anthony Salerno, doing business as Virgo Dress Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint and notice of hearing on September 27, 1976, 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, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. On November 15, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 19, 1976, 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. Respon- dent failed to file a response to Notice To Show Cause and the allegation of the Motion for Summary Judgment stands uncontroverted. 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 228 NLRB No. 55 The complaint and notice of hearing served on Respondent specifically states that unless an answer to the complaint is filed by Respondent within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted by it to be true and may so be found by the Board." Further, according to the uncontroverted Motion for Summa- ry Judgment, on October 28, 1973, counsel for the General Counsel mailed to Respondent by regular mail a letter, in confirmation of a previous telephone call notifying it of its failure to file an answer and informing Respondent that unless an answer to the complaint was received by October 29, 1976, a Motion for Summary Judgment would be made. As of November 12, 1976, that date of the Motion for Summary Judgment, no answer has been filed. Since Respondent did not file an answer to the complaint nor a response to the Notice To Show Cause, and since no good cause for these failures has been shown, the allegations of the complaint are deemed to be admitted and are found to be true in accordance with the rules set forth above. We shall, accordingly, grant the Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, an individual proprietor doing busi- ness under the trade name and style of Virgo Dress Company, maintains its principal office and place of business in New Paltz, New York, where it is engaged in the manufacture, sale, and distribution of women's apparel. Respondent annually manufac- tures and sells goods valued in excess of $50,000, of which goods valued in excess of $50,000 are sold to various jobbers in the garment industry located in the State of New York, each of which jobbers annually sells and ships goods valued in excess of $50,000 directly to States of the United States other than the State of New York. 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 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it will effectuate the policies of the Act to assert V. THE REMEDY jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Local 259, International Ladies' Garment Workers' Union, AFL-CIO, is 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 On or about July 20-22, 1976, Respondent, through its officers, agents, and/or representatives, (a) interrogated its employees concerning their own and other employees' membership in, activities on behalf of, and sympathies with the Union; (b) threatened its employees with discharge because of their activities in support of the Union; and (c) threatened to close its plant if its employees selected the Union as their bargaining representative. Accordingly, we find that, by the aforesaid con- duct, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby 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 July 22, 1976, Respondent terminated the employment of its employees Ruth Keesler and Barbara Gardner and has failed and refused to reinstate them because they joined or assisted the Union or engaged in other union or concerted activities for the purpose of collective bargaining or mutual aid or protection. We accordingly find that, by the aforesaid conduct, Respondent discriminated in regard to the terms and conditions of employment of its employees thereby discouraging membership in a labor organization and that by such conduct 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. Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX3) 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 also found that Respondent discriminatori- ly discharged employees Ruth Keesler and Barbara Gardner, we shall order Respondent to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings they may have suffered by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their discharge to the date of Respondent's offer of reinstatement, less net earnings, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As the unfair labor practices committed by Respondent were of a character which go to the very heart of the Act, we shall order Respondent to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Anthony Salerno, doing business as Virgo Dress Company, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 259, International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section III, A and B, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, 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)(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. VIRGO DRESS COMPANY ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Anthony Salerno, doing business as Virgo Dress Company, New Paltz, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their own and other employees' membership in, activities on behalf of, and sympathy with the Union. (b) Threatening its employees with discharge because of their activities in support of the Union. (c) Threatening to close its plant if its employees select the Union as their collective-bargaining repre- sentative. (d) Discouraging membership in Local 259, Inter- national Ladies' Garment Workers' Union, AFL- CIO, or any other labor organization, by discrimina- torily discharging or by otherwise discriminating in regard to hire and tenure of employment of any of its employees because they joined or assisted the aforesaid Union or any other labor organization, or engaged in other concerted activity for the purpose of collective bargaining or any mutual aid or protection. (e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of 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 Ruth Keesler and Barbara Gardner immediate and full reinstatement to their former jobs or, if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section herein entitled "The Remedy." (b) Post at its New Paltz, New York, plant copies of the attached notice marked "Appendix." ' Copies of said notice, on forms provided by the Regional Director for Region 3, 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. 567 (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 1 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 interrogate our employees con- cerning their own and other employees' member- ship in, activities on behalf of, and sympathy with Local 259, International Ladies' Garment Work- ers' Union, AFL-CIO. WE wiLL NOT threaten our employees with discharge because of their activities in support of the Union. WE WILL NOT threaten to close our plant if our employees select the Union as their collective- bargaining representative. WE wiLL NOT discourage membership in Local 259, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organiza- tion, by discriminatorily discharging or by other- wise discriminating in regard to hire and tenure of employment of any of our employees because they joined or assisted the aforesaid Union, or any other labor organization, or engaged in other concerted activity for the purpose of collective bargaining or any mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them in Section 7 of the Act. WE WILL offer Ruth Keesler and Barbara Gardner immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination against them. ANTHONY SALERNO, DOING BUSINESS AS VIRGO DRESS COMPANY