Eclectic Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1974

209 N.L.R.B. 270 (N.L.R.B. 1974)

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eclectic Inc., and Its Officers and Agents, Frank
Dawson and Marie Dawson and Walter A. White,
Jr. Case 13-CA-12551
February 28, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge and amended charges filed on
August 8, August 16, and October 10, 1973, respec-
tively, by Walter A. White, Jr., an individual, herein
called the Charging Party, and duly served on
Eclectic Inc., and Its Officers and Agents, Frank
Dawson and Marie Dawson, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 13, issued a complaint on October 26, 1973,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair 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.
With respect to the unfair labor practices, the
complaint alleges in substance that (1) on or about
July 15, 1973, and on various dates between August 2
and 7, 1973, at its Chicago, Illinois, plant, the
Respondent, by its supervisors and agents, (a)
interrogated its employees about their union activi-
ties and desires, (b) told its employees that the plant
could not be kept open and would be closed if the
Union I got in and that no pay raises would be given
until the union business was sorted out, (c) encour-
aged and urged its employees to form their own labor
organization, and (d) engaged in surveillance of an
employee union meeting; (2) on or about August 6,
1973, the Respondent reduced the wages of four
named laminating employees, and constructively
discharged one of them, because of their union
activities; (3) on or about August 8, 1973, the
Respondent closed its plant and laid off some 30
named employees, as well as other employees whose
names are unknown to the Regional Director but
known to the Respondent, because of their union
activities; (4) on or about August 15, 1973, it ceased
production operations and laid off or discharged all
of the named and unnamed employees above
because of their union activities; and (5) on or about
August 29, 1973, the Respondent moved its plant and
offices from Chicago, Illinois, to Joliet, Illinois,
' Furniture Workers Industrial Union 420, affiliated with the Industrial
Workers of the World.
because of its employees' union activities and to
discourage and stop such union activities, and, as a
result of said move, terminated the named and
unnamed employees above. By the aforesaid acts
described above, the complaint alleges, the Respon-
dent has violated Section 8(a)(1) and (3) of the Act.
The Respondent failed to file an answer to the
complaint.
On November 19, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, based upon the Respondent's
failure to file an answer as required by Sections
102.20, 102.21, 102.113, and 102.114 of the Board's
Rules and Regulations. Subsequently, on December
4, 1973, 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. The
General Counsel thereafter filed a response to Notice
To Show Cause, but the Respondent failed to do so.
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, Series 8, as amended, 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 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 issued on
October 26, 1973, and duly served on the Respon-
dent specifically states that, unless an answer were
filed within 10 days from the service of the
complaint, "all allegations in the Complaint shall be
deemed to be admitted to be true and may be so
found by the Board." Further, according to the
209 NLRB No. 40
ECLECTIC INC.
Motion for Summary Judgment, counsel for the
General Counsel on November 9, 1973, the day after
the date on which the Respondent was required to
file an answer to the complaint, called and spoke to
Frank Dawson, president of Eclectic Inc., advising
that an answer was overdue and asking whether he
intended to file an answer. Mr. Dawson advised that
he would do so whenever he could get to see his
lawyer. Immediately after the telephone conversa-
tion, counsel for the General Counsel sent a telegram
to Frank Dawson at Eclectic Inc., informing him that
if an answer were not received in the Regional Office
by the close of business on November 13, 1973, he
intended to move for summary judgment.2 Repeated
efforts to reach Marie Dawson, secretary of Eclectic
Inc., by telephone were unsuccessful.3 To date,
neither an answer to the complaint nor a response to
the Notice To Show Cause has been filed by either
Eclectic Inc., Frank Dawson, or Marie Dawson. No
good cause to the contrary having been shown, in
accordance with the rules set forth above, the
allegations of the complaint herein are deemed to be
admitted to be true and are so found to be true. We
shall, accordingly, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF 1 HE RESPONDENT
Eclectic Inc., an Illinois corporation, maintained,
prior to on or about August 29, 1973, its principal
office and place of business in Chicago, Illinois,
where it was engaged in the manufacture and sale of
furniture. Since on or about August 29, 1973,
Respondent has maintained its principal office and
place of business in Joliet, Illinois. where it is now
engaged in the same business operations.
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
Furniture Workers Industrial Union 420, affiliated
with the Industrial Workers of the World, is a labor
organization within the meaning of Section 2(5) of
the Act.
2 In his response to the Notice To Show Cause, counsel for the General
Counsel attached a copy of a letter dated November 16. 1973, from Mr
Dawson requesting a 120-day postponement of the hearing date and a copy
of the Regional Director 's November 20, 1973, reply to that request advising
III. UNFAIR LABOR PRACTICES
271
A. The Independent 8(a)(1) Violations
On or about July 15, 1973, and on various dates
between August 2 and 7, 1973, at its Chicago,
Illinois, plant, the Respondent by its supervisors and
agents (1) interrogated its employees about their
union activities and desires, (2) told its employees
that the plant could not be kept open and would be
closed if the Union got in and that no pay raises
would be given until the union business was sorted
out, (3) encouraged and urged its employees to form
their own labor organization, and (4) engaged in
surveillance of an employee union meeting.
Accordingly, we find that, by the aforesaid con-
duct, the Respondent 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, the Respondent thereby engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
B. The 8(a)(3) Violations
1. On or about August 6, 1973, the Respondent
reduced the wages of laminating employees Walter
A. White, Jr., Willie Robertson, John Skworek, and
Joseph Blecka, and then constructively discharged
John Skworek, because of the union activities of its
employees.
2. On or about August 8, 1973, Respondent
closed its plant and laid off the following named
employees, as well as other employees whose names
are unknown to the Regional Director but well
known to the Respondent, because of the union
activities of its employees: Ernesto Barajas, Willis
Benson , Milton Berry, Jr., Debra Carduin, Debra
Ann Carlvin, Hector Cervantes, Leonia C. Davis,
Charles Denham, Graham Frank, Stanley B. Gill,
Edward Hankins, Margaret Hudson, Cleveland
Hurms, Jr., Deborah Johnson, Curtis LeFlore. John
LeFlore, Elijah Levi, Jr., Jose Maroquin, Thomas
McKee, Arthur Muirhead, Darnell A. Palacio,
Robert Powell, Willie Robertson, Chester Sendra,
Leo A. Smith, Louis Smith, Fulton Spears, Glenda
Stribling, Louis Watson, and Walter White.
3. On or about August 15, 1973, the Respondent
closed its production operations and laid off or
discharged its employees, including the aforesaid
named and unnamed employees, because of the
union activities of its employees.
4. On or about August 29, 1973, Respondent
that the hearing had been postponed indefinitely and that a Motion for
Summary Judgment had been filed
3 Counsel for the General Counsel advises that he was serving a copy of
the Motion for Summary judgment at Marie Dawson 's home address.
272 DECISIONS OF NATIONAL
moved its plant and offices from Chicago, Illinois, to
Joliet, Illinois, because of the union activities of its
employees and to discourage and stop their union
activities, as a result of which it terminated its
employees including the named and unnamed
employees above.
Accordingly, we find that, by the aforesaid con-
duct, the Respondent discriminated in regard to the
terms and conditions of employment of its employ-
ees, thereby discouraging membership in the Union
or in any other labor organization and that, by such
conduct, the Respondent engaged in and is engaging
in unfair labor practices within the meaning of
Section 8(a)(3) and (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 and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) 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.
We have found that the Respondent closed its
plant and production operations and moved from
Chicago, Illinois, to Joliet, Illinois,4 because of its
employees' union activities and in order to discour-
age and stop such activities, and that, as a result, the
Respondent terminated its employees. This constitut-
ed a clear violation of Section 8(a)(3) of the Act. In
order to meaningfully remedy this wrong, and to
effectuate the policies of the Act, we shall adopt the
following alternative remedies requested by counsel
for the General Counsel which we conclude are
appropriate:
1. We shall order the Respondent to reopen its
former plant in Chicago, Illinois, and offer to all its
employees, named and unnamed (see sec. III, B,
supra), discriminatorily terminated on or about
August 8, 1973,5 reinstatement to each of them to his
or her former or substantially equivalent positions,
4 We take official notice of the fact that the distance between the
Respondent's old and new location is approximately 35 miles
5 Including John Skworek who was constructively discharged on August
6, 1973 . The names of unidentified employees and their amounts of backpay
LABOR RELATIONS BOARD
without prejudice to his or her seniority or other
rights and privileges. We shall also order that
Respondent make them whole for any loss of
earnings suffered because of its discrimination
against them. Backpay shall be based upon the
earnings which they normally would have received
from the date of their discharge to the date of
Respondent 's offer of reinstatement , less any net
interim earnings, and shall be computed on a
quarterly basis in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.6
2. In the event that the Respondent does not
resume its Chicago, Illinois, operations, we shall
order that it make whole the aforesaid discriminato-
rily terminated employees for any loss of pay
suffered by reason of the discrimination against them
by paying to each of them a sum of money equal to
the amount he or she would normally have earned as
wages from August 8, 1973, when the Chicago,
Illinois, plant was closed until such time as each
secures, or did secure, substantially equivalent
employment with other employers,7 computed in
accordance with the Board's usual formula set forth
in F. W. Woolworth Company, supra, and Isis
Plumbing & Heating Co., supra.
We shall also order that laminating employees
Walter A. White, Jr., Willie Robertson, John Skwor-
ek, and Joseph Blecka be made whole for the
discriminatory reduction in wages instituted by the
Respondent on August 6, 1973.
Since the unfair labor practices committed by the
Respondent were of a character which go to the very
heart of the Act, we shall also order the Respondent
to cease and desist from infringing in any manner
upon the rights of employees guaranteed by Section 7
of the Act.
We also expressly reserve the right to modify the
backpay and reinstatement provisions of this Deci-
sion and Order, if made necessary by a change of
conditions in the future, and to make such supple-
ments thereto as may hereafter become necessary in
order to define or clarify their application to a
specific set of circumstances not now apparent.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Eclectic Inc., and Its Officers and Agents,
Frank Dawson and Marie Dawson, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
can be ascertained in compliance proceedings
6 Town & Country Mfg Co, Inc, and Town & Country Sales Co, Inc, 136
NLRB 1022, enfd 316 F.2d 846 (C.A. 5, 1963)
7 Bonnie Lass Knitting Mills, Inc, 126 NLRB 1396
ECLECTIC INC.
2. Furniture Workers Industrial Union 420,
affiliated with the Industrial Workers of the World, 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, coerced,
and discriminated against employees in the exercise
of the rights guaranteed to them in Section 7 of the
Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(l) and (3) 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 Respondent,
Eclectic Inc., and Its Officers and Agents, Frank
Dawson and Marie Dawson, Joliet, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
union activities and desires.
(b) Telling its employees that the plant could not
be kept open or would be closed if the Furniture
Workers Industrial Union 420, affiliated with the
Industrial Workers of the World, or any other labor
organization, got in.
(c) Telling its employees that no pay raises would
be given until the union business, referring to the
above-named Union, was sorted out.
(d) Encouraging and urging its employees to form
their own labor organization.
(e) Engaging in surveillance of employee union
meetings.
(f) Discouraging membership in, or activities on
behalf of, the Furniture Workers Industrial Union
420, affiliated with the Industrial Workers of the
World, or any other labor organization, by its
employees by discriminatorily laying off, discharg-
ing, or terminating its employees; by closing its
plant, ceasing production operations, and moving the
plant away; and by discriminatorily reducing the pay
of its employees, or by otherwise discriminating in
regard to the hire or tenure of any of its employees
because they joined or assisted the above-named
Union, or any other labor organization, or engaged
in other concerted activity for the purposes of
collective bargaining or mutual aid and protection.
(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.
273
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Make whole the employees listed in the
Appendix of this Order, as well as other unnamed
terminated employees, and the laminating employees
Walter A. White, Jr., Willie Robertson, John Skwor-
ek, and Joseph Blecka by reason of the discrimina-
tion against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) 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.
(c) Post at its Joliet, Illinois, plant and mail to all its
terminated employees copies of the attached notice
marked "Appendix."8 Copies of said notice, on
forms provided by the Regional Director for Region
13, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the Board reserves to
itself the right to modify the backpay and reinstate-
ment provisions of this Order, if made necessary by
circumstances not now apparent.
x In the event that 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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NO I interrogate our employees con-
cerning their union activities and desires.
WE WILL NOT tell our employees that the plant
could not be kept open or would be closed if the
Furniture Workers Industrial Union 420, affiliat-
ed with the Industrial Workers of the World, or
any other labor organization, got in.
WE WILL NOT tell our employees that no pay
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raises would be given until the union business was
sorted out.
WE WILL NOT encourage and urge our employ-
ees to form their own labor organization.
WE WILL NOT engage in surveillance of employ-
ee union meetings.
WE WILL NOT discourage membership in, or
activities on behalf of, the Furniture Workers
Industrial Union 420, affiliated with the Industri-
al Workers of the World, or any other labor
organization, by our employees by discriminatori-
ly laying off, discharging, or terminating our
employees; by closing our plant, ceasing pro-
duction operations, and moving the plant away;
and by discriminatorily reducing the pay of our
employees, or by otherwise discriminating in
regard to the hire or tenure of any of our
employees because they joined or assisted Furni-
ture Workers Industrial Union 420, affiliated with
the Industrial Workers of the World, or any other
labor organization, or engaged in other concerted
activity for the purposes of collective bargaining
or mutual aid and protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
WE WILL make whole the following named
employees, as well as those unnamed employees
known to us but not to the Regional Director, for
the discrimination practiced against them by their
termination and by the closing of our plant on
August 8, 1973.
Ernesto Barajas
Willis Benson
Milton Berry, Jr.
Debra Carduin
Debra Ann Carlvin
Hector Cervantes
Leonia C. Davis
Charles Denham
Graham Frank
Stanley B. Gill
John LeFlore
Elijah Levi, Jr.
Jose Maroquin
Thomas McKee
Arthur Muirhead
Darnell A. Palacio
Robert Powell
Willie Robertson
Chester Sendra
Leo A. Smith
Edward Hankins Louis Smith
Margaret Hudson Fulton Spears
Cleveland Hurms, Jr. Glenda Stribling
Deborah Johnson Louis Watson
Curtis LeFlore Walter White
WE WILL offer the above-named terminated
employees immediate and full reinstatement to
their former or substantially equivalent positions
without prejudice to their seniority or other rights
and privileges when we resume our Chicago,
Illinois, operations or, alternatively, WE WILL
make them whole until such time as they secure
substantially equivalent employment with other
employers.
WE WILL also make whole laminating employ-
ees Walter A. White, Jr., Willie Robertson, John
Skworek, and Joseph Blecka for the discriminato-
ry reduction of their pay on August 6, 1973.
All our employees are free to become, remain, or to
refrain from becoming or remaining, members of
Furniture Workers Industrial Union 420, affiliated
with the Industrial Workers of the World, or any
labor organization.
ECLECTIC INC., AND ITS
OFFICERS AND AGENTS,
FRANK DAWSON AND
MARIE DAWSON
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Everett McKinley Dirksen Building,
Room 881, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 312-353-7572.