Rose Knitting Mills, Inc.

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rose Knitting Mills, Inc. and Knitgoods Workers' Union, Local 155, a/w International Ladies' Garment Workers Union, AFL-CIO. Case 22- CA-6737 March 16, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER Upon a charge and amended charges filed on December 16, 1975, January 6, 1976, and February 10, 1976, by the Knitgoods Workers' Union, Local 155 a/w International Ladies' Garment Workers Union, AFL-CIO, herein called Local 155, and duly served on Rose Knitting Mills, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22, issued a complaint and notice of hearing on August 2, 1976, against Respondent alleging that Respondent had engaged in and was engaging in unfair labor practices 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 charges and complaint and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. The Respondent failed to file an answer to the complaint. On December 27, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and supporting memorandum based on the Respondent's failure to file an answer as required by Sections 102.20 and 102.21 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended. The order transferring proceeding to the Board and Notice To Show Cause was issued by the Board on January 3, 1977. The Respondent has filed no response to the Notice To Show Cause, and accordingly the allegations of the Motion for Summary Judgment and memorandum in support stand 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: i In accord with Sec. 102. 18 of the Board's Rules and Regulations, the earlier complaint issued herein on February 12, 1976, to which the Respondent filed an answer, was withdrawn pursuant to an informal settlement agreement executed on March 3, 1976, and approved by the Regional Director on March 25 , 1976. On August 2, 1976, the Regional Director withdrew approval of the informal settlement agreement and issued the instant complaint. As set forth in fn I of the Memorandum in Support of Motion for Summary Judgment, counsel for the General Counsel notes that the Respondent had complied with the 8(aXl) and (2) provisions of the original complaint and had reinstated the alleged 8(a)(1) and (3) 228 NLRB No. 86 Ruling on the Motion for Summary Judgment Rule 102.20 of the Board's Rules and Regulations, 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 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 which issued on August 2, 1976, and was served on Respondent's counsel by registered mail and on the Respondent by regular mail, states that "the Respondent shall file . . . an Answer to said Complaint within ten (10) days from service thereof, and that, unless it does so, all of the allegations contained in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." According to the uncontrovert- ed allegations of the Memorandum in Support of Motion for Summary Judgment, counsel for the General Counsel, upon being advised telephonically on September 27, 1976, that Respondent's counsel was no longer representing Respondent and that Respondent had closed its Ridgefield, New Jersey, place of business, had service of the complaint made at Respondent president's last known place of abode. As of December 14, 1976, the date of the Motion for Summary Judgment, Respondent has failed to file an answer or to explain the reason for such failure. No good cause to the contrary having been shown,2 in accordance with the rules set forth above, the allegations of the complaint herein are deemed to be admitted as true and are so found to be true. Accordingly, the General Counsel's Motion for Summary Judgment is hereby granted. On the basis of the entire record the Board makes the following: discnnunatees, but refused to make them whole. Accordingly, the instant complaint refers solely to the 8(a)(1) and (3) allegations. 2 Since the withdrawal of the earlier February 12, 1976, complaint resulted in the parties reverting to the situation existing prior to the issuance of a complaint (cf. International Ladies' Garment Workers Union, Local 415- 475, AFL-CIO [Arosa Knitting Mills] v. N LR B., 501 F.2d 823 (C.A.D.C, 1974)), the filing of an answer to the complaint issued on February 12, 1976, which had been withdrawn, does not constitute an answer to the new complaint which issued on August 2, 1976. ROSE KNITTING MILLS, INC. 747 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a New Jersey corporation, has its principal office and plant at 486 Hendricks Cause- way, Ridgefield, New Jersey, where it is engaged in the manufacture, sale, and distribution of knit goods and related products. During the calendar year 1975, Respondent caused to be manufactured, sold, and distributed at its Ridgefield plant , knit goods valued in excess of $50,000 of which products valued in excess of $50,000 were shipped from said Ridgefield plant in interstate commerce directly to States of the United States other than the State of New Jersey. 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 it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Knitgoods Workers' Umon, Local 155, a/w Inter- national Ladies' Garment Workers Union, AFL- CIO, and Local 363, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 363, are labor organizations 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 December 17, 1975, Respondent (1) interrogated certain of its employees concerning their membership in and activities on behalf of and sympathy for Local 155, and (2) threatened certain of its employees with discharge if they refused to give assistance and support to Local 363. B. The 8(a)(3) Violations On or about December 3, 1975 , the Respondent did discharge employees Ramon Alonso Martinez, Jaime Espinosa, Federico Andrade, and Cesar Iturralde and thereafter refused to reinstate or offer reinstatement to said employees because said em- ployees joined or assisted Local 155 or engaged in other concerted activities for the purpose of collec- tive bargaining, or mutual aid or protection. On or about December 17, 1975, Respondent did discharge employee Jesus Valdes and, thereafter, failed and refused to reinstate or offer reinstatement to said employee, because said employee refused to join Local 363, and sought to assist Local 155 and engaged in other concerted activities for the purposes of collective bargaining, or mutual aid or protection. Accordingly, we find that by the aforesaid conduct, as set forth in sections III, A and B, above, Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and has discriminated in regard to the terms and conditions of employment of its employees Martinez , Espinosa, Andrade, Iturralde, and Valdes, and, by such conduct, Respondent has engaged 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 thereof. 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. We have also found that Respondent discriminato- rily discharged and refused to reinstate or offer to reinstate employees Martinez, Espinosa, Andrade, Iturralde, and Valdes. However, as the General Counsel's Memorandum in Support of Motion for Summary Judgment states at footnote 1, the Respon- dent has reinstated said employees , but has refused to make them whole . Accordingly, we shall not order reinstatement but shall order that Respondent make said employees whole for any loss of earnings suffered because of discrimination against them. Backpay shall be based upon the earnings which each employee would normally have received from the date of his discharge to the date of Respondent's reinstatement of him, less any net interim earnings, and shall be computed on the 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: 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Rose Knitting Mills, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Knitgoods Workers' Union, Local 155, a/w International Ladies' Garment Workers Union, AFL-CIO, and Local 363, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations 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 them in Section 7 of the Act, and, therefore , has engaged in and is engaging in unfair labor practices within the meaning of Section 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 Relations Board hereby orders that the Respondent, Rose Knitting Mills, Inc., 486 Hendricks Causeway, Ridgefield, New Jersey, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their membership in and activities on behalf of and sympathy for Knitgoods Workers' Union, Local 155, a/w International Ladies' Garment Workers Union, AFL-CIO, or any labor organization. (b) Threatening employees with discharge if they refuse to give assistance and support to Local 363, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (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, Knitgoods Workers' Union, Local 155, a/w International Ladies' Garment Workers Union, AFL-CIO, or any other labor organization, by discriminatorily discharging or terminating employ- ees, or by otherwise discriminating in regard to the hire or tenure of its employees because they joined or assisted the above-named or any other labor organi- zation or engaged in other concerted activities for the purposes of collective bargaining or mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole employees Ramon Alonso Marti- nez, Jaime Espinosa, Federico Andrade, Cesar Iturralde, and Jesus Valdes for their losses suffered by reason of the discrimination against them as 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 486 Hendricks Causeway, Ridgefield, New Jersey, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's represen- tative, 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 22, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 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 membership in and activities on behalf of and sympathy for Knitgoods Workers' Union, Local 155, a/w International Ladies' Garment Workers Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten employees with dis- charge if they refuse to give assistance and support to Local 363, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in their rights ROSE KNITTING MILLS, INC. 749 guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL NOT discourage membership in, or activities on behalf of, Knitgoods Workers' Union, Local 155, a/w International Ladies' Garment Workers Union, AFL-CIO, or any other labor organization, by discriminatorily discharging or terminating employees, or by otherwise discriminating in regard to the hire or tenure of employees because they joined or assisted the above-named or any other labor organization or engaged in other concerted activities for purposes of collective bargaining or mutual aid or protection. WE WILL make whole employees Ramon Alonso Martinez, Jaime Espinosa, Federico Andrade, Cesar Iturralde, and Jesus Valdes for their losses suffered by reason of the discrimina- tion against them, with interest. ROSE KNITTING MILLS, INC.