C & B Family Food Center, Inc.

1 324 NLRB No. 22 1 See Signage Systems, Inc., 312 NLRB 1115 (1993); Orange Data, Inc., 274 NLRB 1018 (1985), and Ofalco Properties, 281 NLRB 84 (1986). NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. C&B Family Food Center, Inc. and Local 951, Unit- ed Food and Commercial Workers Inter- national Union, AFL–CIO. Case 7–CA–35892 August 11, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge filed by the Union on May 2, 1994, the General Counsel of the National Labor Relations Board issued a complaint on June 28, 1994, against C&B Family Food Center, the Respondent, alleging that it has violated Section 8(a)(1) and(3) of the Na- tional Labor Relations Act. On July 14, 1994, the Re- spondent filed an answer to the complaint, admitting in part and denying in part the allegations of the com- plaint. Thereafter, on October 31, 1994, the Regional Di- rector approved an informal settlement agreement, en- tered into by the Respondent and the Union, in dis- position of the complaint. On May 14, 1997, however, the Regional Director issued an order setting aside the settlement agreement and reissuing the complaint on the grounds that the Respondent had failed and refused to comply with the terms of the settlement agreement by failing to make the agreed-upon payments to be for- warded to the Michigan Employment Security Com- mission. Although properly served copies of the May 14, 1997 order reissuing the complaint, the Respondent failed to file an answer. Accordingly, on July 14, 1997, the General Counsel filed a Motion for Summary Judg- ment with the Board. On July 18, 1997, the Board is- sued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, un- less good cause is shown. In addition, the reissued complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations will be considered admitted. Further, the undisputed allega- tions in the Motion for Summary Judgment disclose that the Region, by letter dated June 4, 1997, notified the Respondent that unless an answer were received by June 13, 1997, a Motion for Summary Judgment would be filed. Nevertheless, as indicated above, the Respondent failed to file an answer to the reissued complaint. Although the Respondent did file an answer to the original June 28, 1994 complaint, that answer was withdrawn by the terms of the settlement agreement, and was not thereafter revived by the Regional Direc- tor’s order setting aside the settlement agreement. Thus, as the Respondent’s answer to the original com- plaint does not remain extant, it does not preclude summary judgment.1 Accordingly, in the absence of good cause being shown for the failure to file a timely answer to the May 14, 1997 reissued complaint, we grant the Gen- eral Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Michigan corporation with an office and place of business in Edmore, Michigan, has been engaged in the retail sale of groceries from its Edmore and Blanchard, Michigan facilities. During the 1993 calendar year, the Respond- ent, in conducting its operations, received gross reve- nue in excess of $1 million and purchased and re- ceived at its Edmore, Michigan facility goods valued in excess of $50,000 from other enterprises, including from Capistar, Inc., each of which other enterprises had received these goods directly from point outside the State of Michigan. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES On February 8 and 10, 1994, the Respondent coer- cively interrogated employees at its Blanchard and Edmore facilities, respectively, regarding their union activities. About March 18, 1994, the Respondent transferred employee Cheryl Allen from her produce manager po- sition to a cashier position at the Edmore facility, re- ducing both her scheduled hours of work and her wage rate. About March 19, 1994, the Respondent dis- charged its employee Ed Mogg from its Edmore facil- ity. About March 25, 1994, the Respondent issued a written discipline at its Edmore facility to employee Cheryl Allen, and, about April 22, 1994, discharged her. The Respondent engaged in this conduct because the named employees had joined and/or assisted the 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 If 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.’’ Union and to discourage them and other employees from such activities and other activities protected by the Act. CONCLUSIONS OF LAW 1. By the acts and conduct described above, the Re- spondent has been interfering with, restraining, and co- ercing employees in the exercise of the rights guaran- teed in Section 7 of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By transferring Cheryl Allen, issuing her a written discipline and discharging her, and by discharging Ed Mogg, the Respondent has also been discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifi- cally, having found that the Respondent has unlawfully transferred and discharged Cheryl Allen and dis- charged Ed Mogg, we shall order the Respondent to offer the discriminatees immediate and full reinstate- ment to their positions as produce manager and meat manager, respectively, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be required to expunge from its files any and all references to the unlawful transfer, written discipline, and discharges, and to notify the discriminatees in writing that this has been done. ORDER The National Labor Relations Board orders that the Respondent, C&B Family Food Center, Inc., Edmore, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees regarding their union ac- tivities. (b) Transferring, issuing written discipline to, or dis- charging its employees because they join and/or assist Local 951, United Food and Commercial Workers International Union, AFL-CIO, or to discourage them and other employees from such activities and other ac- tivities protected by the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Cheryl Allen and Ed Mogg full reinstatement their former jobs as produce manager and meat manager, re- spectively, or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful trans- fer of and written discipline to Cheryl Allen and the unlawful discharges of Cheryl Allen and Ed Mogg, and within 3 days thereafter notify them in writing that this has been done and that the discipline or discharges will not be used against them in any way. (c) Make whole Cheryl Allen and Ed Mogg for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest, in the manner set forth in the remedy section of this decision. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 2, 1994. 3 C&B FAMILY FOOD CENTER (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. August 11, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT interrogate our employees regarding their union activities. WE WILL NOT transfer, issue written discipline to, or discharge our employees because they join and/or as- sist Local 951, United Food and Commercial Workers International Union, AFL–CIO, or to discourage them and other employees from such activities or other ac- tivities protected by the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Cheryl Allen and Ed Mogg full rein- statement their former jobs as produce manager and meat manager, respectively, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed. WE WILL make whole Cheryl Allen and Ed Mogg for any loss of earnings and other benefits suffered as a result of our discrimination against them, with inter- est. WE WILL remove from our files any reference to the unlawful transfer of and written discipline to Cheryl Allen and the unlawful discharges of Cheryl Allen and Ed Mogg, and WE WILL, within 3 days thereafter, no- tify them in writing that this has been done and that the discipline or discharges will not be used against them in any way. C&B FAMILY FOOD CENTER, INC.