Decor Unfinished Furniture

DECOR UNFINISHED FURNITURE Alfred Gilgen and Amalia Gilgen, a Partnership, d/b/a Decor Unfinished Furniture and Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-CIO. Case 20- CA-11918 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER Upon a charge filed on September 14, 1976, and a first amended charge filed on March 4, 1977, by Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Alfred Gilgen and Amalia Gilgen, a Partnership, d/b/a Decor Unfinished Furniture, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and notice of hearing on March 31, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, the first amended charge, the com- plaint, and notice of hearing before an Administra- tive Law Judge were duly served on the parties to this proceeding. Respondent failed to file an answer to the complaint. On May 16, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment.' Subsequently, on May 25, 1977, 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. Respondent did not file a response to the Notice To Show Cause and therefore the allegations in the Motion for Summary Judgment 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: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides: I On June 7, 1977. counsel for the General Counsel filed a motion to correct the Motion for Summary Judgment to conform with the complaint. 231 NLRB No. 159 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 served on the Respondent herein specifically states that unless an answer to the complaint is filed within 10 days of service thereof "all of the allegations in the Com- plaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, according to the uncontroverted allegations of the Motion for Summary Judgment, Respondent was advised on April 22, 1977, by telephone and telegram that it had failed to file an answer and that summary judgment would be sought herein unless an answer to the complaint was filed by April 26, 1977. As noted above, Respondent has failed to file an answer to the complaint and has failed to file a response to the Notice To Show Cause. Accordingly, under the rule set forth above, no good cause having been shown for the failure to file a timely answer, the allegations of the complaint are deemed admitted and are found to be true, and we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, a partnership with its principal office and places of business located in Santa Clara, San Jose, and Mountain View, California, where it is engaged in the retail sale of furniture. Annually, in the course and conduct of its business operations, Respondent receives gross revenues in excess of $500,000 and purchases and receives at its facilities in the State of California goods and materials valued in excess of $10,000 from points located outside the State of California. 961 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At all times material herein, each of the following named individuals has occupied the position set forth opposite his name, has been an agent of Respondent, acting on its behalf, within the meaning of Section 2(13) of the Act, and has been a supervisor of Respondent within the meaning of Section 2(11) of the Act. Alfred Gilgen-owner and partner of Respondent Amalia Gilgen-owner and partner of Respon- dent Joseph Theep-general manager, San Jose Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed by Section 7 of the Act by engaging in the following acts and conduct: (I) On an unknown date in January 1976, Respon- dent, by Alfred Gilgen at its San Jose retail store, prohibited employees from engaging in the protected concerted activity of discussing wages. (2) On an unknown date in August 1976, Respon- dent, by Joseph Theep at its San Jose retail store, promulgated rules prohibiting discussion about wages among its employees. (3) On an unknown date in July 1976, Respondent, by Alfred Gilgen at its San Jose retail store, interrogated employees about their activities and sympathies for the Union. (4) On an unknown date in July 1976, Respondent, by Alfred Gilgen at its San Jose retail store, threatened to fire any employees involved with the Union. (5) On an unknown date in July 1976, Respondent, by Alfred Gilgen at its San Jose retail store, threatened elimination of bonuses if the Union became the collective-bargaining representative of the employees. (6) On an unknown date in July 1976, Respondent, by Alfred Gilgen at its San Jose retail store, threatened employees with more arduous working conditions if the Union became their collective- bargaining representative. (7) On or about September 4, 1976, Respondent terminated its employee, Wayne A. Suttkus, because he engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion. Accordingly, we find that by the aforesaid conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and by such conduct Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(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 unfair labor practices within the meaning of Section 8(a)(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 found that the unfair labor practices committed by Respondent were of a character which goes to the heart of the Act, we shall also order Respondent to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. We have found that Respondent discharged employee Wayne A. Suttkus because he engaged in protected concerted activities. Accordingly, we shall order that he be offered immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. We shall also order that Respondent make employee Wayne A. Suttkus whole for any loss of pay suffered because of the unlawful discharge. Backpay shall be based upon the loss of earnings suffered from the date of the unlawful discharge to the date of Respondent's offer of reinstatement. The backpay shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed as provided in Isis Plumbing & 962 DECOR UNFINISHED FURNITURE Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977).2 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Alfred Gilgen and Amalia Gilgen, a Partner- ship, d/b/a Decor Unfinished Furniture, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-CIO, 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, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(l) 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, Alfred Gilgen and Amalia Gilgen, a Partnership, d/b/a Decor Unfinished Furniture, San Jose, Cali- fornia, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Prohibiting employees from engaging in the protected concerted activity of discussing wages. (b) Promulgating rules prohibiting discussion about wages among employees. (c) Interrogating employees about their activities and sympathies for the Union. (d) Threatening to fire employees for being involved with the Union. (e) Threatening to eliminate bonuses if the Union becomes the collective-bargaining representative of its employees. (f) Threatening employees with more arduous working conditions if the Union becomes their collective-bargaining representative. (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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to reinstate Wayne A. Suttkus to his former job or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole employee Wayne A. Suttkus for losses he may have suffered by reason of the unlawful discharge 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 its San Jose, California, facility, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 20, 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. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 2 In accordance with our decision in Florida Steel Corporation, we shall apply the current 7-percent rate for penods prior to August 2S, 1977. in which the "adjusted prime interest rate" as used by the United States Internal Revenue Service in calculating interest on tax payments was at least 7 percent. I In the event that this Order is enforced by a Judgment of a 1United 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 prohibit employees from discuss- ing wages. WE WILL NOT promulgate rules prohibiting discussion about wages among employees. WE WILL NOT interrogate employees about their activities and sympathies for the Union. WE WILL NOT threaten to fire employees for being involved with the Union. WE WILL NOT threaten to eliminate bonuses if the Union becomes the collective-bargaining representative of its employees. WE WILL NOT threaten employees with more arduous working conditions if the Union becomes their collective-bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the rights guaranteed them in Section 7 of the Act. WE WILL offer to reinstate Wayne A. Suttkus to his former job or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL make whole employee Wayne A. Suttkus for losses he may have suffered by reason of the unlawful discharge, with interest. ALFRED GILGEN AND AMALIA GILGEN, A PARTNERSHIP, D/B/A DECOR UNFINISHED FURNITURE 964