Gilman Street Gourmet

National Labor Relations Board - Board Decisions

Feb 25, 1981

254 N.L.R.B. 972 (N.L.R.B. 1981)

32-CA-2804,
d/
Goutmet,
8(a)(1) 2(6)
1980,
32-CA-3068
8(a)(1)
2(6)
32-CA-2804
32-CA-3068.
1 I,
32-CA-3068
32-CA-3068 32-CA-2804,
32-
CA-3068
Regula-
32-
CA-2804
Sec. 102.33(a)(Z), National
amended.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gil Gor Corporation d/b/a Gilman Street Gourmet
and Alternative Food Workers Alliance and
Chris Pocock. Cases 32-RC-
1082, and 32-CA-3068
February 25, 1981
ORDER CONSOLIDATING CASES,

DECISION, ORDER, AND DIRECTION

OF SECOND ELECTION

Upon a charge filed on June 12, 1980, by Alter-
native Food Workers Alliance, herein called the
Union, and duly served on Gil Gor Corporation
b/a Gilman Street herein called Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 32, issued a complaint and notice of hearing
in Case 32-CA-2804 on August 26, 1980, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices af-
fecting commerce within the meaning of Section
and Section and (7) of the National
Labor Relations Act, as amended. Upon a charge
filed on September 17, by Chris Pocock,
herein called Pocock, an individual, and duly
served on Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 32, issued a complaint and
notice of hearing in Case on October
28, 1980, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section
and Section and (7) of the National Labor Re-
lations Act, as amended. Copies of the charges,
complaints, and notices of hearing before an admin-
istrative law judge were duly served on the parties
to this proceeding. Respondent failed to file an
answer to either complaint.
On November 4, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment in Case 32-CA-2804 based on
Respondent's failure to file an answer as required
by Sections 102.20 and 102.21 of the National
Labor Relations Board Rules and Regulations,
Series 8, as amended. Subsequently, on November
12, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
did not file a response to the Notice To Show
Cause and, accordingly, the allegations of the com-
plaint in Case stand uncontroverted.
On December 1, 1980, counsel for the General
Counsel filed directly with the Board a motion for
an order consolidating cases and for summary
judgment in Case The General Coun-
sel's Motion for Summary Judgment is based on
Respondent's failure to file an answer in that case.
The General Counsel further claims that Respon-
dent's failure to file an answer in both unfair labor
practice cases presents related factual matters and
that these two cases should be considered jointly to
avoid unnecessary costs and delay. On December
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's motion for an
order consolidating cases and Motion for Summary
Judgment should not be granted. Respondent did
not file a response to the Notice To Show Cause
and, accordingly, the allegations of the complaint
in Case stand uncontroverted.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Order Consolidating
Cases
The General Counsel has moved for summary
judgment in Cases and
based on Respondent's failure to file an answer in
either case.
No cause to the contrary having been shown, we
find that these cases present related factual and
legal issues, and that we can avoid unnecessary
costs and delay by considering them jointly.'
Therefore, we grant the General Counsel's motion.
Accordingly, it is hereby ordered that Case
be, and it hereby is, consolidated with
Cases 32-CA-2804 and 32-RC-1082.
Ruling on the Motions for Summary Judgment
Section 102.20 of the Board's Rules and .
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. 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 in Case
served on Respondent on August 26,
See Labor Relations Board Rules and
Regulations, Series 8, as
254 NLRB No. 120
pro~eedings.~
32-CA-3068,
Causes
32-CA-3068.
$500,000,
$5,000
' 21. Ofiice
confirmed this conversation
W e Counael
Rcspondmt's respond
Cnse 32CA-2804, k
Rnpondent Case
Truck and Tmiler Divislon E.T. d T. Lmsing. Inc.,
1
2(6)
11.
Workers
2(5)
111.
2(11)
2(13)
2(13)
2(11)
2(13)
terminate,
8(a)(l) 2(6)
973 GILMAN STREET GOURMET
1980, specifically stated that unless an answer to
the complaint was filed within 10 days from the
service thereof, "all of the allegations in the Com-
plaint shall be deemed to be admitted to be true
and may be so found by the Board." Further, Re-
spondent was notified by letter dated September
16, 1980, that an answer to the complaint had not
been received, and that summary judgment would
be sought unless an answer to the complaint was
filed by October 1, 1980. Subsequently, on at least
three occasions, counsel for the General Counsel
informed Respondent that the Board had not yet
received an answer to the complaint and reminded
Respondent that, absent its filing an answer, the
Regional Office would institute summary judgment
The complaint and notice of hearing
in Case served on Respondent on Oc-
tober 29, 1980, also stated that, unless an answer to
the complaint was filed within 10 days from the
service thereof, "all of the allegations in the Com-
plaint shall be deemed to be admitted to be true
and may be so found by the Board."
As noted above, Respondent has not filed an
answer to either complaint, nor did it respond to
either Notice To Show No good cause to
the contrary having been shown, in accordance
with Section 102.20 of the Board's Rules and Reg-
ulations, the allegations of both complaints are
deemed to be admitted and are found to be true.
Accordingly, we grant the General Counsel's Mo-
tions for Summary Judgment4 in Case 32-CA-2804
and in Case
On the basis of the entire record, the Board
makes the following:
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a Cali-
fornia corporation with an office and place of busi-
ness in Berkeley, California, has been engaged in
the retail sale of food and delicatessen products.
During the past 12 months, Respondent, in the
course and conduct of its business operations, de-
rived gross revenue in excess of and pur-
chased and received goods or services valued in
excess of which originated outside the State
of California.
On Octokr 1980. Respondent informed the Regional by
telephone that an answer would k filed. By letter dated Octokr 22.
1980, counsel for the General Counsel and
forwarded, at Respondent's request, another copy of the complaint.
General is of the opinion. and we agree, that, in light of
failure to m repeated requests to file an answer in
it would futile to undertake further actions notify-
ing of its obligation to file an answer in 32-CA-3068.
Eagle Rental of
NLRB 804 (1974).
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
THE LABOR ORGANIZATION INVOLVED
Alternative Food Alliance is a labor or-
ganization within the meaning of Section of
the Act.
THE UNFAIR LABOR PRACTICES
At all times material herein, Ed Kuell has been
Respondent's manager and has been a supervisor
within the meaning of Section of the Act and
an agent of Respondent within the meaning of Sec-
tion of the Act. At all times material herein,
Mark Hipperson has been Respondent's bookkeeper
and has performed other miscellaneous duties for
Respondent, and is now, and has been at all times
relevant herein, an agent of Respondent within the
meaning of Section of the Act. At all times
material herein, Merritt Anderson has been Re-
spondent's owner and has been a supervisor within
the meaning of Section of the Act, and an
agent of Respondent within the meaning of Section
of the Act.
On several unknown dates in June or July 1980,
Mark Hipperson interrogated employees as to how
they were going to vote in an election scheduled
by the National Labor Relations Board for July 11,
1980. Additionally, on June 26, 1980, at a meeting
of Respondent's employees, Hipperson solicited
employee grievances with the promise of rectifying
them. Further, on an unknown date in June 1980,
Ed Kuell interrogated an employee about the
Union and the employees' union activities and
other protected concerted activities. In addition, on
or about August 29, 1980, Meritt Anderson threat-
ened an employee by stating that he would issue
written warnings to, and eventually her
because she stated an intent to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection.
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and Re-
spondent thereby has engaged in and is engaging in
unfair labor practices affecting commerce within
the meaning of Section and Section and
(7) of the Act.
21
1V. EFFECT
111,
8(aXl)
affumative
VI. REPRESENTATlON 32-RC-1082
15,
2(a), (b),
2(e)
hearing.5 2(e)
bership
2(e),
' Regional recommended
be issues
Hipperson.
8(a)(l)
&l-Tex Inc.,
(1962), "[c]onduct
8(a)(l) fortiori,
lqc)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE OF THE UNFAIR LABOR Hipperson solicited employees' grievances and im-
PRACTICES U W N COMMERCE plied that the Employer would remedy them. The
The activities of Respondent set forth in section
above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 of the Act, we shall
order that it cease and desist therefrom and take
certain action designed to effectuate the
policies of the Act.
CASE
On July 11, 1980, pursuant to a Stipulation for
Certification Upon Consent Election approved on
June 27, 1980, an election by secret ballot was con-
ducted in a unit of all full-time and regular part-
time clerks, counterpersons, cooks, janitors, dish-
washers, and cashiers employed by Respondent at
its Gilman Street, Berkeley, California, location;
excluding all office clerical employees, guards and
supervisors as defined in the Act. The tally of bal-
lots showed that, of approximately 20 eligible
voters, 5 cast ballots for and 7 cast ballots against
the Petitioner. There were six challenged ballots, a
number sufficient to affect the results of the elec-
tion. .
On July the Petitioner timely filed objections
to the election, a copy of which was duly served
on Respondent. On August 26, 1980, the complaint
and notice of hearing in Case 32-CA-2804 was
issued.
On August 27, 1980, the Regional Director for
Region 32 issued a Report on Objections and Chal-
lenged Ballots. In it, he recommended that the Pe-
titioner's Objections l, (c), (d), and (3) be
overruled and that the Petitioner's Objection
raised substantial issues of fact which could best be
resolved by a Objection alleges that
the Employer "interrogated employees about mem-
in, support for and activities on behalf of
the Union." The Regional Director also noted that,
in addition to the Petitioner's Objection his in-
vestigation disclosed substantial and material issues
of fact as to whether Respondent's agent Mark
The Director also that challenges to three
ballots be sustained, challenges to two ballots be overruled, and that a
hearing held to determine the raised by the challenge to the
ballot of Mark
Regional Director noted that the issues that he rec-
ommended be set for a hearing were the same as
those alleged to be unfair labor practices in Case
32-CA-2804. Accordingly, he recommended that
the representation case be consolidated with the
unfair labor practice case.
No exceptions were filed to the Regional Direc-
tor's report. On September 15, 1980, the Board
adopted the Regional Director's recommendations
and issued an Order Directing Regional Director
To Open and Count Challenged Ballots. On Octo-
ber 8, 1980, the Regional Director issued an order
consolidating cases and notice of hearing in Cases
32-RC-1082 and 32-CA-2804.
We have found that Respondent engaged in
unfair labor practices within the meaning of Sec-
tion of the Act by interrogating employees
about their support for and activities on behalf of
the Union, and their intention to vote in a Board
election, and by soliciting employees' grievances
and implying that the Employer would remedy
them. This conduct is the same as that alleged in
the Petitioner's objections to the election. As stated
by the Board in Optical Company, 137
NLRB 1782, 1786 violative of
Section is, a conduct which inter-
feres with the exercise of a free and untrammeled
choice in an election." We find, therefore, that Re-
spondent's conduct constitutes interference with
the employees' free election choice and warrants
setting aside the election.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Gil Gor Corporation d/b/a Gilman Street Gour-
met, Berkeley, California, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
union activities and their intention to vote in Na-
tional Labor Relations Board elections.
(b) Soliciting employee grievances with the
promise of rectifying them in order to discourage
employees from supporting the Alternative Food
Workers Alliance or any other union.
(c) Threatening employees by stating that it will
issue warning letters to them and eventually termi-
nate them in order to discourage them from engag-
ing in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion.
"Appendi~."~
(b)
FURTHER
IJ
States
National
as
POSTED
Labor
975 GILMAN STREET GOURMET
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them under Section
7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its facility in Berkeley, California,
copies of the attached notice marked
Copies of said notice, on forms provided by the
Regional Director for Region 32, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS ORDERED that the election held
on July 11, 1980, in Case 32-RC-1082 be, and it
hereby is, set aside and that said case is hereby re-
manded to the Regional Director for Region 32 for
In the event that this Order is enforced by a Judgment of a United
Court of Appeals, the words in the notice reading "Posted by
Order of the Labor Relations Board shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
purposes of conducting a second election direct-
ed below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE TO EMPLOYEES
BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees con-
cerning their union activities and their inten-
tion to vote in National Relations Board
elections.
WE WILL NOT solicit employee grievances
with the promise of rectifying them in order to
discourage employees from supporting the Al-
ternative Food Workers Alliance or any other
union.
WE WILL NOT threaten employees by stating
that we will issue warning letters to them and
eventually terminate them in order to discour-
age them from engaging in concerted activities
for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them under Section 7 of the Act.