Handy Dan'S Convenience Store No. 2

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Handy Dan's Convenience Store, ' Dan Dickhaut, d/b/a Handy Dan, a/k/a Crosstown- Food & Liquors, Inc: • d/b/a Handy Dan's Convenience Store No. 2 and Debbie Williams and United Food and Commercial Workers Local 219, Chartered by . United Food and Commercial Workers International Union , AFL-CIO-CLC. Cases 14-CA-17765 and 14-CA-17771 14 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS, HUNTER AND DENNIS On a charge filed by an individual 10 December 1984 and a charge filed by the Union 13 December 1984 and amended 7 January 1985, the General Counsel of the National Labor Relations Board issued a consolidated complaint 21 January 1985 against the Company, the Respondent, alleging that it has violated Section 8(a)(5), (3), and (1) of the National Labor Relations Act. The complaint alleges that the Company violated Section 8(a)(3) and (1) of the Act by posting a notice changing the working hours of its employ- ees effective 10 December 1984; by discharging employees Myler and Robinson about 11 Decem- ber 1984; by constructively discharging employee Collins about 13 December 1984 and employee Williams about 24 December 1984; and by failing and-refusing to rescind its decision to change the employees' working hours or to reinstate the four named employees: The complaint further alleges that about 11 November 1984 the Union was desig- nated the exclusive collective-bargaining represent- ative of the employees and that since about 7 De- cember 1984 the Company has failed and refused to recognize and bargain with the Union. The com- plaint also alleges that the change in working hours and the four discharges constitute unfair labor practices so serious and substantial in character that the possibility of erasing the effects of these unfair labor practices and of conducting a fair election by the use of traditional remedies is slight and that employee sentiments, having been expressed through authorization cards, would be protected better by the issuance of a bargaining order. The complaint further alleges that the Company violat- ed Section 8(a)(5) and (1) by unilaterally changing the employees' working hours and by refusing to recognize and bargain with the Union. Although properly served copies of the charges and com- plaint, the Company has failed to file an answer. On 27 February 1985 the General Counsel ' filed with the Board a Motion for Default Summary Judgment. On 1 March 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the, motion should not be granted. The Company did not file a • re- sponse to the Notice to Show Cause. The allega- tions in the-motion therefore,are undisputed. Ruling on Motion for Default Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 10 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 10 days from the service, "all of the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, according to the Motion for Default Summary Judgment, on 4 February 1985 counsel for the General Counsel mailed to the Company a letter advising it of its obligation to file an answer and further advising that, unless an answer was received by the close of business on 8 February 1985, a'Motion for Summa- ry Judgment would be filed. As noted above, the Company has failed to file an answer to the com- plaint, and has failed to file a response to the Notice to Show Cause. Accordingly, in the ab- sence of good cause being shown for failure to file a timely answer, we grant the General Counsel's Motion for Default Summary Judgment insofar as the complaint alleges that the - Company violated Section 8(a)(3) and (1) of the Act by changing the working hours of its employees, by discharging employees Myler and Robinson and constructively discharging employees Collins and Williams, and by failing and refusing to reinstate those employees or to rescind its decision changing the employees' working hours. As noted above, the complaint additionally al- leges that these unfair labor practices are so serious and substantial in character that the possibility of erasing the effects of these unfair labor practices and of conducting a fair election by the use of tra- ditional remedies is slight and that employee senti- ment, having been expressed through authorization cards, would be protected better by the issuance of a bargaining order. In determining whether a bar- gaining order is appropriate to remedy an employ- er's misconduct, we utilize the test delineated in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In evaluating the nature and pervasiveness of a company's unfair labor practices, that test requires us to consider many factors before making a deter- mination as to whether a bargaining order is war-. ranted. See, e.g., Ohio New & Rebuilt Parts, 267 NLRB 420 (1983); Martin City Ready Mix, 264 NLRB 450 (1982). The complaint in the instant 275 NLRB No. 61 HANDY DAN'S CONVENIENCE STORE case merely alleges that the Company unlawfully discharged two employees, constructively dis- charged two employees , and changed the employ- ees' working hours. The complaint further alleges in conclusionary terms that such unfair labor prac- tices preclude the holding of a fair election and that therefore a bargaining .ordei is warranted. In' our view, the' complaint does not allege sufficient facts to determine whether a bargaining order is warranted and whether the Company- - therefore violated Section 8(a)(5) and ( 1) of the At as al- leged. See Power Jet Industrial Cleaning, 270_NLRB 975 (1984). Accordingly, we deny the Motion. for Default Summary Judgment insofar as it alleges that a bargaining order is appropriate and that the Company violated -Section 8(a)(5) and ( 1) of the Act. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company is an Illinois corporation engaged in the retail sale of liquor, food, grocery items, and related products. -During the year ending 31 De- cember 1984, a representative period, the Compa- ny, in the course and conduct of its business oper- ations, derived gross revenues in excess of $500,000 and purchased and caused to be transported and delivered at its Swansea , Illinois store goods and supplies valued in excess of $5000 directly from points outside 'the State of Illinois. We find that the Company is an employer engaged in commerce within the meaning of Section 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.- n. ALLEGED UNFAIR LABOR PRACTICES About 7 December 1984 the Company changed the hours of employment of its employees effective 10 December 1984, thereby subjecting them to. more onerous working conditions. About 11 De- cember 1984 the Company discharged . employe es Robinson and Myler . About 13 . December 1984 the Company constructively discharged employee Col- lins and about 24 December 1984 constructively discharged employee Williams. Since 7 December 1984, the Company has failed and refused to re- scind its decision to change the hours of employ- ment of its employees or to reinstate the four named employees . The Company engaged in the above conduct in order to discourage employees' union activities and/or protected concerted activi- ties. Accordingly , we find that the Company has dis- criminated, and is discriminating; in regard to the 395 hire or tenure or terms or conditions of employ- ment of its employees, thereby discouraging mem- bership in a labor organization , and that the Com- pany thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(3) of the Act. We further find that the Company has interfered with , restrained , and co- erced, and is interfering with, restraining , and co- ercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby has engaged in, and is engaging ,in, unfair ' labor prac- tices within the meaning of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW By changing the employees ' working hours ef- fective 10 December 1984, by discharging employ- ees Myler and Robinson about 11 December 1984, by constructively discharging employee Collins about 13 December 1984 and employee Williams about 24 December 1984, and thereafter by failing and refusing to rescind its decision to change the employees' working hours and failing and refusing to reinstate the four above-named employees, the Company has engaged in unfair -labor practices af- fecting -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 violated Section 8(a)(3) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action ' designed to effectuate the policies of the Act. We shall order the Respondent to rescind its 10 December 1984 changes in the employees' working hours. We also shall order the Respondent to offer employees Myler, Robinson, Collins, and Williams immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions , without prejudice to their seniority or any other rights or privileges previously enjoyed . We further shall order the Respondent to make the above-named employees whole for any loss of earnings they-may have suffered as a result of the discrimination against them, to be.computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See Isis Plumbing Co., 138 NLRB 716 (1962). We also shall order the Respondent to. remove fro-a its files any reference to the - unlawful discharges ` and to notify the em- ployees in writing that this has been done and that the unlawful discharges will not be used as a basis for future personnel actions against them . We also 396 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall order the Respondent to post an appropriate notice to employees. ORDER The National- Labor Relations Board orders that the Respondent, Handy Dan's Convenience Store, Dan Dickhaut, d/b/a Handy Dan, also known as Crosstown Food & Liquors, Inc. d/b/a Handy Dan's Convenience Store No. 2, Swansea, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Changing employees' working hours in order to discourage their membership in, activities on behalf of, and sympathies for Local 219, United Food and Commercial Workers International Union, AFL-CIO-CLC or any other labor organi- zation. - (b) Discharging. or constructively discharging and failing and refusing to reinstate employees, or otherwise discriminating against employees, be- cause of their union membership, activities, and sympathies. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) -Rescind the 10 December 1984 changes in the employees'- working hours. (b) Offer employees Myler, Robinson, Collins, and Williams immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights or 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 section of this deci- sion. _ (c) Expunge from its files any reference to the unlawful discharges of Myler, Robinson, Collins, and -Williams, and notify them in writing that this has been done and that evidence of their unlawful discharges will not be used as a basis for future personnel actions against them. (d) Preserve and, on request, make available to the Board or its agents for -examination and copy- ing, 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. (e) Post at its Swansea, Illinois facility copies of the attached notice marked "Appendix."1 Copies of the notice, on forms provided by the Regional -Director for Region 14, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re-' ceipt and maintained for 60' consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. - (f). Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. ' 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al 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 ordered us to post and abide by this notice. WE WILL NOT change employees' working hours in order to discourage their membership in, activi- ties on behalf of, and sympathies for Local 219, United Food and Commercial Workers Internation- al Union, AFL-CIO-CLC or any other labor orga- nization. WE WILL NOT discharge or constructively dis- charge and fail and refuse to reinstate employees, or otherwise discriminate against employees, be- cause of - their union membership; activities, and sympathies. WE WILL NOT in any -like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL-rescind the 10 December 1984 changes in the employees' working hours. - WE WILL offer employees Myler, Robinson, Col- lins, and Williams immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. HANDY DAN'S CONVENIENCE' STORE - 397 WE WILL make the above-named employees whole for any . loss of earnings they may have suf; fered as a result of the discrimination against them, with interest. - WE WILL notify Myler, Robinson, Collins, and Williams that we have removed from our files any reference to • the unlawful - discharges and that evi- dence of their unlawful` discharges will not be used against them in any way. HANDY DAN'S CONVENIENCE STORE, DAN DICKHAUT, D/B/A HANDY DAN, A/K/A CROSSTOWN- FOOD & LIQUORS, INC. D/B/A HANDY DAN'S CONVENIENCE STORE No. 2 I