Imperial Floral Distributors

147 319 NLRB No. 24 IMPERIAL FLORAL DISTRIBUTORS 1 The consolidated complaint was served by certified mail on Re- spondent at its last known business address and at the home of its owner and president, Linda Keenan. In each case, the envelopes were returned as ‘‘unclaimed’’ by the U.S. Postal Service. A failure to claim certified mail, however, cannot be used as a means to defeat the purposes of the Act. Michigan Expediting Service, 282 NLRB 210 (1986). Further, on May 9, 1995, the General Counsel caused the consolidated complaint to be personally served on Keenan at her home. 2 An order correcting the Notice to Show Cause issued on August 25, 1995, which extended the time for response to September 7, 1995. 3 Although no further reminder or warning of the consequences of failing to file an answer was sent or given to the Respondent, this does not warrant denying the Motion for Summary Judgment. See, e.g., Superior Industries, 289 NLRB 834, 835 fn. 13 (1988). 4 See, e.g., FJN Mfg., 305 NLRB 656 (1991); Bravo Mechanical, 300 NLRB 1019 (1990); Control & Electrical System Specialists, 299 NLRB 642 (1990); Protection Sprinkler Systems, 295 NLRB 1072 (1989); Binney’s Casting Co., 285 NLRB 1095 (1987); and Michigan Expediting Service, supra. We therefore also deny the General Counsel’s request for a make-whole Order under Trans- marine Navigation Corp., 170 NLRB 389 (1968), as a remedy for the Respondent’s alleged 8(a)(5) failure to bargain with the Union over the effects of the closure of its Glendale facility. In the absence of an answer, however, we find the various factual allegations under- lying the alleged 8(a)(5) violations to be admitted. These allegations include the allegations that the bargaining unit is appropriate, that a majority of the unit employees have designated the Union as their bargaining representative, that the Union requested the Respondent to recognize and bargain with it as the exclusive representative in that unit, that the Respondent refused to do so, and that Respondent closed its facility without affording the Union notice or an oppor- tunity to bargain about the effects of the closing on unit employees. 5 Nothing contained herein requires a hearing if, in the event of an amendment to the consolidated complaint, the Respondent fails to answer thereby admitting evidence that would permit the Board to resolve the bargaining order issue. In such circumstances the Gen- eral Counsel may renew the Motion for Summary Judgment with re- spect to the 8(a)(5) allegations and remedies. Imperial Floral Distributors, Inc. and Gene Lawless and Amalgamated, Industrial and Toy and Novelty Workers of America, Local 223, Inter- national Union of Allied, Novelty and Produc- tion Workers, AFL–CIO. Cases 29–CA–18712, 29–CA–18728, and 29–CA–18792 September 29, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS COHEN AND TRUESDALE Upon charges filed on November 25, December 1, and December 23, 1994, and an amended charge filed on February 28, 1995, the General Counsel of the Na- tional Labor Relations Board issued an Order Consoli- dating Cases, Consolidated Complaint and Notice of Hearing on February 28, 1995, against Imperial Floral Distributors, Inc., the Respondent, alleging that it has violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Although properly served copies of the charges and consolidated complaint,1 the Re- spondent failed to file an answer. On August 14, 1995, the General Counsel filed a Motion for Summary Judgment with the Board. On August 16, 1995, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted.2 The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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 consolidated complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the consolidated complaint will be considered admit- ted.3 In the absence of good cause being shown for the failure to file an answer, we grant the General Coun- sel’s Motion for Summary Judgment insofar as the consolidated complaint alleges that Respondent vio- lated Section 8(a)(1) and (3) of the Act. The consolidated complaint, however, further alleges in conclusionary terms that the Respondent’s unfair labor practices are so serious and substantial in char- acter that the possibility of erasing the effects of the unfair labor practices and holding a fair election by the use of traditional remedies is slight, and that therefore a bargaining order is warranted under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Although we agree that the violations of Section 8(a)(1) and (3) here are serious in nature, the complaint does not allege suffi- cient facts to enable the Board to evaluate the perva- siveness of the violations. For example, the complaint does not allege the size of the unit or the extent of dis- semination, if any, of the violations among the em- ployees not directly affected by them. Accordingly, consistent with prior Board decisions, we deny the General Counsel’s Motion for Summary Judgment in- sofar as it alleges that a bargaining order is appropriate and that the Respondent therefore violated Section 8(a)(5) and (1) of the Act by failing to recognize and bargain with the Union.4 We shall remand the case for a hearing before an administrative law judge on the issue of whether a bargaining order is an appropriate remedy under the circumstances of this case.5 VerDate 12-JAN-99 11:13 Jul 28, 1999 Jkt 183525 PO 00000 Frm 00001 Fmt 0610 Sfmt 0610 D:\NLRB\319\31924 apps04 PsN: apps04 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times until about December 14, 1994, the Respondent, a New York corporation with its prin- cipal office and place of business at 74–07 88th Street, Glendale, New York, was engaged in the manufacture and nonretail sale of artificial plants and trees and re- lated products. During the year ending December 14, 1994, Respondent purchased and received at its Glen- dale facility products, goods, and materials valued in excess of $50,000 directly from firms located outside the State of New York. We find that the Respondent is an employer engaged in commerce within the mean- ing 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 about November 15, 1994, the Respondent, by its president, Linda Keenan, at its Glendale facility, in- formed employees that it would be futile for them to select the Union as their bargaining representative. On about November 15 and 25, 1994, the Respond- ent, by Keenan, at its Glendale facility, interrogated employees about their membership in, activities on be- half of, and sympathy for, the Union. At various times between November 15 and 25, 1994, Respondent, by its vice president, Ralph DeSteano, at its Glendale facility (a) Threatened employees with layoffs, reduction from full-time to part-time work hours, and other un- specified reprisals if they join and support the Union. (b) Informed employees that it would be futile for them to select the Union as their bargaining representa- tive. (c) Directed employees not to join the Union. On about November 21, 1994, the Respondent, by verbal announcements by DeStefano, at its Glendale facility, promulgated and maintained certain rules be- cause the employees joined or supported the Union and in order to discourage such activities. These rules (a) Required employees to work separately in re- mote corners of Respondent’s Glendale facility. (b) Prohibited employees from speaking to each other at work. (c) Prohibited employees from sitting while they are working, and removing their chairs. (d) Prohibited employees from smoking at work. (e) Required employees who call in sick to produce a doctor’s note, or be subject to discharge. (f) Required employees to report for work on time or be subject to discharge. (g) Required employees to work new schedules, in- cluding Saturdays and Sundays. On about November 21, 1994, the Respondent, by Keenan, at its Glendale facility, created the impression among employees that their meetings with and activi- ties on behalf of the Union were being kept under sur- veillance by Respondent. On about November 22, 1994, the Respondent, by Keenan, at its Glendale facility, threatened employees with plant shutdown because they joined and supported the Union. On about November 22 through 25, 1994, the Re- spondent more closely supervised the work of its em- ployees than it had previously because the employees joined or supported the Union. On about November 25, 1994, Respondent issued its employee, Erik Jorgensen, a warning letter stating that future lateness would be grounds for termination, be- cause he joined or supported the Union. On about the dates set opposite their names, the Re- spondent laid off or discharged the following employ- ees, and has since failed and refused to recall or rein- state, or offer to recall or reinstate them to their former positions of employment, because they joined or sup- ported the Union: Gene Lawless November 21, 1994 Jose Arteaga November 25, 1994 Maximo Saez November 26, 1994 Commencing about November 28, 1994, and con- tinuing to about December 14, 1994, when Respondent closed its Glendale facility, certain employees of the Respondent ceased work concertedly and engaged in a strike against Respondent on behalf of the Union. This strike was caused and prolonged by Respondent’s un- fair labor practices described above. CONCLUSIONS OF LAW By the acts and conduct described above, the Re- spondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. In addition, by promulgating and maintaining until it closed various work rules, more closely supervising the work of its employees and issuing a warning letter to an employee, and laying off, discharging, and refusing to recall or reinstate employees because they joined or supported the Union, the Respondent has also engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) 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. VerDate 12-JAN-99 11:13 Jul 28, 1999 Jkt 183525 PO 00000 Frm 00002 Fmt 0610 Sfmt 0610 D:\NLRB\319\31924 apps04 PsN: apps04 149 IMPERIAL FLORAL DISTRIBUTORS 6 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.’’ Having found that the Respondent unlawfully laid off or discharged employees Gene Lawless, Jose Arteaga, and Maximo Saez and refused to recall or re- instate them, we shall order the Respondent, in the event it reopens its facility, to offer them immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equiva- lent jobs, without prejudice to their seniority and other rights and privileges. In addition, we shall order the Respondent to make them whole for any loss of earn- ings as a result of the discrimination against them by paying them backpay from the time of their layoffs and/or discharges until the date the facility closed. Backpay shall be computed 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). We shall further order the Respondent to remove from its files any reference to the warning letter to em- ployee Jorgensen and to the layoff or discharges of employees Lawless, Arteaga, and Saez and notify these employees that this has been done and that those ac- tions will not be used against them in any way. In addition, having found that the strike of Respond- ent’s employees was caused and prolonged by Re- spondent’s unfair labor practices, we shall order the Respondent, in the event it resumes operations and the employees offer to return to work, to offer those em- ployees immediate reinstatement to their former posi- tions or, if those positions no longer exist, to substan- tially equivalent positions. Finally, inasmuch as the Respondent’s facility is now closed, we shall order the Respondent to mail copies of the notice to all unit employees. ORDER The National Labor Relations Board orders that the Respondent, Imperial Floral Distributors, Inc., Glen- dale, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Informing employees that it is futile for them to seek union representation. (b) Interrogating employees regarding their union membership, activities, and sympathies. (c) Threatening employees with layoff, reduction in work hours, plant closure, or other unspecified repris- als because they joined the Union. (d) Directing employees not to join the Union. (e) Creating an impression among its employees that their union activities are under surveillance. (f) More closely supervising the work of its employ- ees because of their union activities. (g) Promulgating and maintaining new work rules because employees join or support the union. (h) Laying off, discharging, issuing written warnings to, or otherwise discriminating against employees, be- cause they joined or supported the Union. (i) 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) Rescind the new work rules promulgated on No- vember 21, 1994. (b) Offer immediate and full reinstatement to em- ployees Lawless, Arteaga, and Saez, in the event Re- spondent reopens the Glendale facility, to their former jobs or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to senior- ity or other rights and privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy sec- tion of this decision. (c) Remove from its files any reference to the un- lawful layoff, discharges, and warning, and notify em- ployees Jorgensen, Lawless, Arteaga, and Saez in writ- ing that this has been done and that those actions will not be used against them in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) In the event Respondent reopens its facility and its striking employees offer to return to work, offer them immediate and full reinstatement to their jobs or, if those positions no longer exist, to substantially equivalent positions. (f) Mail signed and dated copies of the attached no- tice marked ‘‘Appendix’’6 to all unit employees em- ployed by the Respondent at its Glendale facility at the employees’ last known addresses. Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be mailed by the Respondent im- mediately upon receipt. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that this proceeding is re- manded to the Regional Director for the purpose of holding a hearing before an administrative law judge VerDate 12-JAN-99 11:13 Jul 28, 1999 Jkt 183525 PO 00000 Frm 00003 Fmt 0610 Sfmt 0610 D:\NLRB\319\31924 apps04 PsN: apps04 150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD or other appropriate action with respect to the alleged 8(a)(5) violations and remedies sought. 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 ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT inform employees that it is futile for them to seek union representation. WE WILL NOT interrogate employees about their union activities, membership, or sympathies. WE WILL NOT threaten employees with layoffs, re- duction in work hours, plant closure, or other unspec- ified reprisals because they joined the Amalgamated, Industrial and Toy and Novelty Workers of America, Local 223, International Union of Allied, Novelty and Production Workers, AFL–CIO or any other union. WE WILL NOT direct our employees not to join the Union. WE WILL NOT create an impression among our em- ployees that their union activities are under surveil- lance. WE WILL NOT more closely supervise our employees because of their union activity. WE WILL NOT promulgate and maintain new work rules because our employees join or support the Union. WE WILL NOT layoff, discharge, issue written warn- ings to, or otherwise discriminate against employees because they joined or supported the Union. WE WILL NOT in any like or related manner interefere with, restrain, or coerce employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. WE WILL rescind the November 21, 1994 work rules. WE WILL, in the event we reopen the Glendale facil- ity, offer employees Gene Lawless, Jose Arteaga, and Maximo Saez immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from our dis- crimination against them, plus interest. WE WILL notify employees Lawless, Arteaga, Saez, and Erik Jorgensen that we have removed from our files any reference to their unlawful layoff, discharges, or warning, and that we will not use those actions against them in any way. WE WILL, in the event we reopen the Glendale facil- ity, offer immediate and full reinstatement to the em- ployees on strike at the time we closed our facility to their former jobs or, if those positions no longer exist, to substantially equivalent positions. IMPERIAL FLORAL DISTRIBUTORS, INC. VerDate 12-JAN-99 11:13 Jul 28, 1999 Jkt 183525 PO 00000 Frm 00004 Fmt 0610 Sfmt 0610 D:\NLRB\319\31924 apps04 PsN: apps04