Arpel, Inc.

National Labor Relations Board - Board Decisions

Oct 23, 1979

246 N.L.R.B. 218 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arpel, Inc. and Local 162, International Ladies' Gar-
ment Workers' Union, AFL-CIO. Case 22 CA
8975
October 23, 1979
DECISON AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E
Upon a charge filed on January 30, 1979, by Local
162, International Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union or Local 162, and
duly served on Arpel, Inc., herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
22, issued a complaint and notice of hearing on
March 30, 1979, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and notice
of hearing before an administrative law judge were
duly served on the parties to this proceeding. Respon-
dent failed to file an answer to the complaint.
On August 20, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 29, 1979,
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 failed to file a re-
sponse to the Notice To Show Cause and therefore
the allegations of the Motion for Summary Judgment
stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 as follows:
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 com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions 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 admit-
ted 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 specifically
states that, unless an answer to the complaint is filed
within 10 days from the service thereof, "all of the
allegations contained in the Complaint shall be
deemed to be admitted to be true and may be so
found by the Board." As of the date of filing of the
Motion for Summary Judgment, no answer had been
filed by Respondent. Furthermore, Respondent has
failed to file a response to the Notice To Show Cause
in which it could have attempted to explain its failure
to answer.
In view of Respondent's failure to answer, and no
good cause having been shown therefor, the uncon-
troverted allegations of the complaint are deemed ad-
mitted and found to be true in accordance with the
rule set forth above. Accordingly. we grant the Gen-
eral Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACTI
I. IHE 1BUSINI-SS O() RESPONDI-NI
Respondent, a New Jersey corporation, at all times
material herein, has maintained its principal office
and place of business at 620 Gotham Parkway, Carl-
stadt, New Jersey, where it has engaged in the pur-
chase, sale, and distribution of garments and related
products. Respondent's Carlstadt place of business is
its only facility involved in this proceeding. In the 12
months preceding issuance of the complaint, Respon-
dent caused to be purchased, transferred, and deliv-
ered to its Carlstadt place of business goods and ma-
terials valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were trans-
ported to said place of business in interstate com-
merce directly from States of the United States other
than the State of New Jersey.
We find, on the basis of the foregoing. that Respon-
dent 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.
246 NLRB No. 30
218
ARPEL. INC.
II. THE I.ABOR ORGANIZATION IN\OI.VED)
Local 162, International Ladies' Garment Workers'
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
I11. THE UNFAIR LABOR PRAC(TICES
A. The Independent 8(a)( ) Violations
Respondent, at its Carlstadt place of business (1) at
various times during the week of December 11, 1978,
by its president, Anival Aison, and its foreman, Juan
Bayron, interrogated its employees concerning their
union membership and activities; (2) on or about De-
cember 14, 1978, by Juan Bayron, threatened em-
ployees with reprisals if they became or remained
members of the Union, or gave assistance or support
to the Union: and (3) on or about December 14, 1978.
by Anival Aison and Juan Bayron, engaged in sur-
veillance of the meeting places, meetings, and activi-
ties of Local 162, and other concerted activities of its
employees.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed under Section 7 of the Act, and that, by
such conduct, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
B. The 8(a)(3) Violations
I. On or about December 14, 1978, Respondent
discharged Victor Castillo, an employee at its Carl-
stadt facility, because he joined or assisted Local 162
or engaged in other concerted activities for the pur-
pose of collective bargaining, or mutual aid or protec-
tion. Respondent has failed and refused to reinstate
Castillo to his former or a substantially equivalent
position of employment.
2. On or about December 15, 1978, Respondent
laid off Jimmy Tandazzo, Felix Santiago, Jean Rob-
ert Castel, and Martha Jimenez. employees at its
Carlstadt facility, because they joined or assisted Lo-
cal 162 or engaged in other concerted activities for
the purpose of collective bargaining, or mutual aid or
protection. Respondent has failed and refused to rein-
state Tandazzo, Santiago, Castel, and Jimenez to
their former or substantially equivalent positions of
employment.
3. From on or about December 18, 1978. to on or
about January 12, 1979, certain employees of Re-
spondent employed at its Carlstadt facility ceased
work concertedly and went out on strike. This strike
was caused by all of the unfair labor practices of Re-
spondent listed above. On or about January 10. 1979.
the following striking employees made unconditional
offers to return to their former or substantially equiv-
alent positions of employment:'
Armando Chavez
Blanca Santiago
James Kelly
Jose P. Fernandez
Hector Rodriguez
Jimmy O. Tandazo
Jose L. Correa
Octavio De Jesus
John Edward
Hundley
Olga Luna
Roosevelt Anderson
Jean Robert Castel
Mercedes Delgado
Jose R. Rodriguez
Martha Jimenez
Victor Jose Castillo
Betty Alcalde
Pablo Herrera
Alex Fernandez
Genoveta Kaban
Since on or about January 12, 1979, Respondent had
failed and refused to reinstate these 20 employees be-
cause they had joined or assisted Local 162, engaged
in other concerted activities for the purpose of collec-
tive bargaining or mutual aid or protection, and par-
ticipated in the strike.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has discriminated in regard to the
terms and conditions of employment of its employees,
thereby discouraging membership in the Union or
any other labor organization and that, by such con-
duct, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
IV. THE EFFECTI 0( IlE UNFAIR LABOR PRACIC('ES
UPON ('()MMER(CE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. TIlE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the Act. we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discriminatorily
terminated the employment of Victor Castillo, Jimmy
I It appears that there may be among the unfair labor practice sinkers who
unconditionally offered to return to work employees who we have found
were discriminatorils terminated prior to the commencement of the strike It
is well settled that emplosees who are unlalwtullN terminated before a strike
are entitled to hackpa) for the entire duration of the strike. See, e g. Polyne-
vran Culrural C(enter, Inc. 222 NI RB 1192. 1194, fn 12 (19761
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tandazzo, Felix Santiago, Jean Robert Castel, and
Martha Jimenez, we shall order Respondent to offer
them immediate and full reinstatement to their for-
mer jobs or, if such jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges previously en-
joyed, and to make them whole for any loss of earn-
ings they may have suffered because of the discrimi-
nation against them by payment to them of sums of
money equal to the amounts which they normally
would have earned from the date of their termination
to the date of Respondent's offer of reinstatement,
less any net interim earnings. Such backpay shall be
computed, with interest thereon, in the manner set
forth in F. W. Woolworth Compan,,, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).2
Having also found that Respondent unlawfully
failed and refused to restore the unfair labor practice
strikers named below to their former jobs upon their
unconditional applications to return to work, we shall
also order Respondent to offer to them full and imme-
diate reinstatement to their former jobs or, if such
jobs no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, any em-
ployees hired as replacements, and make said striking
employees whole for any loss of earnings they may
have suffered because of Respondent's discrimination
against them by paying them the sums of money
equal to that which they normally would have earned
from January 10, 1979, the date that their uncondi-
tional offer to return to work was tendered, to the
date of Respondent's offer of reinstatement, less any
net interim earnings. Their backpay shall be com-
puted in the same manner as that of the unlawfully
terminated employees named above. The unfair labor
practice strikers are:
Armando Chavez
Blanca Santiago
James Kelly
Jose P. Fernandez
Hector Rodriguez
Jimmy O. Tandazo
Jose L. Correa
Octavio De Jesus
John Edward
Hundley
Olga Luna
Roosevelt Anderson
Jean Robert Castel
Mercedes Delgado
Jose R. Rodriguez
Martha Jimenez
Victor Jose Castillo
Betty Alcalde
Pablo Herrera
Alex Fernandez
Genoveta Kaban
Further, as Respondent has engaged in such egre-
gious and widespread misconduct as to demonstrate a
general disregard for its employees' fundamental
statutory rights, we shall order Respondent to cease
and desist from infringing in any other manner upon
2 See, generally. Isis Plumbing & lieating (o.. 138 NLRB 716 (19621.
the rights of employees guaranteed by Section 7 of
the Act.3
The Board, upon the basis of the foregoing facts
and the entire record, makes the fobllowing:
CONCLL.SI()NS O() LAW
1. Arpel, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 162, International Ladies' Garment
Workers' Union, AFL CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The strike which began on or about December
18. 1978, was in its inception, and continued there-
after to be, an unfair labor practice strike.
4. By the acts described in section III, B, above,
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
5. By the acts described in section III, A and B,
above, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
6. 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 Rela-
tions Board hereby orders that the Respondent,
Arpel, Inc., Carlstadt, New Jersey, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their
membership in, activities on behalf of, and sympathy
in Local 162.
(b) Threatening its employees with reprisals if they
become or remain members of Local 162, or give any
assistance or support to it.
(c) Keeping under surveillance the meeting places,
meetings, and activities of Local 162 and other con-
certed activities its employees engage in for the pur-
pose of collective bargaining or other mutual aid or
protection.
(d) Discouraging membership in, or activities on
behalf of, Local 162, International Ladies' Garment
Workers' Union, AFL CIO, or any other labor or-
ganization, by its employees by discriminatorily dis-
charging or laying off its employees, or by otherwise
discriminating in regard to the hire or tenure of any
of its employees because they join or assist the above-
named Union, or any other labor organization, or en-
gage in other concerted activity for the purposes of
collective bargaining or mutual aid and protection.
See Ilickmo IFoods. Inc., 242 NLRB 1357 (1979).
220
ARPEI_
(e) 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 Victor Castillo, Jimmy Tandazzo, Felix
Santiago, Jean Robert Castel, and Martha Jimenez
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent positions without prejudice to their seniority or
other rights and privileges previously enjoyed, and
make them whole for any loss of earnings they may
have suffered because of the discrimination practiced
against them, in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Offer the following employees reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prejudice
to their seniority and other rights and privileges, dis-
missing, if necessary, any employees hired as replace-
ments, and make them whole for any loss of earnings
they may have suffered because of the discrimination
practiced against them in the manner set forth in the
section of this Decision entitled "The Remedy":
Armando Chavez
Blanca Santiago
James Kelly
Jose P. Fernadez
Hector Rodriguez
Jimmy O. Tandazo
Jose L. Correa
Octavio De Jesus
John Edward
Hundley
Olga Luna
(c) Preserve and, upon
Roosevelt Anderson
Jean Robert Castel
Mercedes Delgado
Jose R. Rodriguez
Martha Jimenez
Victor Jose Castillo
Betty Alcalde
Pablo Herrera
Alex Fernandez
Genoveta Kaban
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 place of business in Carlstadt, New
Jersey, copies of the attached notice marked "Appen-
dix."4 Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
( In the event that this Order is enforced by a Judgment ofa 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."
221
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 22. in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NO1TI(E 1()o EMPI.()YIIS
P()SIEI) BY ORI)ER ()F IlE
NAI()ONAI LABOR REL.ATIONS BOARD
An Agency of the United States Government
Wi: Wlll. NOI interrogate our employees con-
cerning their membership in, activities on behalf
of: and sympathy in Local 162.
WI WiL.L. NOI theaten our employees with re-
prisals if they become or remain members of Lo-
cal 162, or give any assistance or support to it.
Wi: Wil. NOT keep under surveillance the
meeting places, meetings, and activities of Local
162 and other concerted activities our employees
engage in for the purpose of collective bargain-
ing or other mutual aid or protection.
WE WIL. NOI discourage membership in, or
activities on behalf of, Local 162, International
Ladies' Garment Workers' Union, AFL CIO, or
any other labor organization, by our employees
by discriminatorily discharging or laying off our
employees, or by otherwise discriminating in re-
gard to the hire or tenure of any of our employ-
ees because they join or assist the above-named
Union, or any other labor organization, or en-
gage in other concerted activity for the purpose
of collective bargaining or mutual aid and pro-
tection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7 of
the Act.
Wl: WIL offer Victor Castillo, Jimmy Tan-
dazzo. Felix Santiago, Jean Robert Castel, and
Martha Jimenez reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions without prejudice to
their seniority or other rights and privileges pre-
viously enjoyed, and W wi.t.L make them whole
for any loss of earnings they may have suffered
because of the discrimination practiced against
them, plus interest.
WE. wi.l. offer immediate and full reinstate-
ment to the following unfair labor practice strik-
ers to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, with-
DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
out prejudice to their seniority or other rights
and privileges previously enjoyed, dismissing, if
necessary, any employees hired as replacements,
and WE WILL make them whole for any loss of
earnings they may have suffered because of the
discrimination practiced against them, plus inter-
est:
Armando Chavez
Blanca Santiago
James Kelly
Roosevelt Anderson
Jean Robert Castel
Mercedes Delgado
Jose P. Fernandez
Hector Rodriguez
Jimmy 0. Tandazo
Jose L. Correa
Octavio De Jesus
John Edward
Hundley
Olga Luna
Jose R. Rodriguez
Martha Jimenez
Victor Jose Castillo
Betty Alcalde
Pablo Herrera
Alex Fernandez
Genoveta Kaban
ARPEI., INC.
222