Decor Unfinished Furniture

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 961 (N.L.R.B. 1977)

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