Park Avenue Gourmet

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Four J. Food Corp. d/b/a Park Avenue Gourmet and Local 169, Union of Needletrades, Industrial and Tex- tile Employees, AFL–CIO–CLC. Case 2–CA– 33721–1 November 9, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH On a charge filed by Local 169, Union of Nee­ dletrades, Industrial and Textile Employees, AFL–CIO, CLC (the Union) on April 26, 2001, the General Counsel of the National Labor Relations Board issued a complaint on June 29, 2001, against Four J. Food Corp. d/b/a Park Avenue Gourmet, the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent failed to file an answer. On October 1, 2001, the General Counsel filed a Mo­ tion for Summary Judgment and memorandum in support with the Board. On October 3, 2001, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondent filed no response. The allega­ tions 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, unless good cause is shown. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed allegations in the Mo­ tion for Summary Judgment disclose that the Region, by letters dated August 29 and September 5, 2001, extended the Respondent’s time to file an answer to the complaint and notified the Respondent that unless an answer was received by September 7 and 12, 2001, respectively, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the fail­ ure to file a timely answer, we grant the General Coun- sel’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 corporation with an office and place of business in New York, New York, has been engaged in the sale of food and other goods to the public. Annually, the Respondent, in conducting its business operations, derives gross revenues in excess of $500,000, and purchases products, goods, and materials valued in excess of $5000 directly from suppliers located outside the State of New York. 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 At all material times, Seak Kwang Ha held the position of the Respondent’s president, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent acting on its behalf. In about February 2001, the Union commenced an or­ ganizational campaign among the Respondent’s employ­ ees. On April 17, 2001, the Union filed a petition in Case 2–RC–22388 with the Board, and on that same date the Regional Director for Region 2 faxed a copy of the petition to the Respondent. On about April 17, 2001, the Respondent discharged its employee Angel Delgado. Since that date, the Re- spondent has failed and refused to reinstate, or offer to reinstate, Delgado to his former position of employment. The Respondent engaged in the conduct set forth above because Delgado joined and assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. In about early June 2001, the Respondent, by Seak Kwang Ha, in his office at the Respondent’s facility, interrogated employees about their union activities and the union activities of other employees. CONCLUSIONS OF LAW 1. By discharging Angel Delgado and refusing to offer him reinstatement to his former position, the Respondent has discriminated in regard to the hire or tenure or terms and conditions of employment of its employees, thereby discouraging membership in a labor organization in vio- lation of Section 8(a)(3) and (1) of the Act. 2. By interrogating employees about their union activi- ties and the union activities of other employees, the Re- spondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 3. The Respondent’s unfair labor practices affect com­ merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer­ tain unfair labor practices, we shall order it to cease and 336 NLRB No. 100 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(3) and (1) by discharging Angel Delgado on April 17, 2001, we shall order the Respondent to offer him full rein- statement to his former job or, if that job no longer ex- ists, to a substantially equivalent position, without preju­ dice to his seniority or any other rights or privileges pre­ viously enjoyed. We also shall order the Respondent to make Delgado whole for any loss of earnings and other benefits suffered as a result of the discrimination against him. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with in­ terest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent also shall be required to remove from its files any reference to Delgado’s unlawful discharge, and notify him in writing that this has been done and that the discharge will not be used against him in any way. ORDER The National Labor Relations Board orders that the Respondent, Four J Food Corp. d/b/a Park Avenue Gourmet, New York, New York, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they join or assist Local 169, Union of Needletrades, Industrial and Textile Employees, AFL– CIO, CLC, or engage in concerted activities, or to dis- courage employees from engaging in such activities. (b) Interrogating employees about their union activities and the union activities of other employees. (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 Angel Delgado full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Angel Delgado whole for any loss of earn- ings and other benefits suffered as a result of his unlaw- ful discharge, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Angel Delgado and, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so­ cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, 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 New York, New York, copies of the at- tached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 2, 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 Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no­ tice to all current employees and former employees em­ ployed by the Respondent at any time since April 17, 2001. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. November 9, 2001 Peter J. Hurtgen, Chairman Wilma B. Liebman, Member Dennis P. Walsh, 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. 1 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” PARK AVENUE GOURMET 3 WE WILL NOT discharge or otherwise discriminate against you because you join or assist Local 169, Union of Needletrades, Industrial and Textile Employees, AFL– CIO, CLC, or engage in concerted activities, or to dis- courage you from engaging in such activities. WE WILL NOT interrogate you concerning your union activities and the union activities of other employees. 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, within 14 days from the date of the Board’s Order, offer Angel Delgado full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Angel Delgado whole for any loss of earnings and other benefits suffered as a result of his unlawful discharge, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Angel Delgado and, within 3 days there- after, WE WILL notify him in writing that this has been done and that the discharge will not be used against him in any way. FOUR J. FOOD CORP D/B/A PARK AVENUE GOURMET