Jade of Kokomo, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1979

241 N.L.R.B. 889 (N.L.R.B. 1979)

JADE OF KOKOMO
Jade of Kokomo, Inc. and Local 25, Retail Clerks In-
ternational Association, AFL-CIO. Case 25-CA-
10154
April 16, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on August 31, 1978, as
amended on October 20, 1978, by Local 25, Retail
Clerks International Association, AFL-CIO, herein
called the Union, and duly served on Jade of Ko-
komo, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board by
the Regional Director for Region 25, issued a com-
plaint and notice of hearing on October 27, 1978, as
amended on November 15, 1978, against Respondent,
alleging that Respondent had engaged in, and was
engaging in, unfair labor practices affecting com-
merce within the meaning of Section 8(a)(l), (3), and
(5) 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 Adminis-
trative Law Judge were duly served on the parties to
this proceeding. Respondent failed to file an answer
to the complaint; however, counsel for Respondent,
by letter dated November 6, 1978, acknowledged re-
ceipt of the complaint and notice of hearing, and ad-
vised that Respondent would not appear or in any
manner defend against the complaint because its op-
erations had been suspended and its assets had been
seized by secured creditors.
On December 14, 1978, the counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. Subse-
quently, on December 12, 1978, 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 response to the
Notice To Show Cause, and therefore the allegations
in the Motion for Summary Judgment stand uncon-
troverted.
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, 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 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 served on Re-
spondent specifically stated that unless an answer was
filed to the complaint within 10 days from the service
thereof "all of the allegations of the complaint shall
be deemed to be admitted to be true and may be so
found by the Board." As noted above, Respondent
did not file an answer to the complaint, nor did it file
a response to the Notice To Show Cause. No good
cause to the contrary having been shown,' in accord-
ance with the rules set forth above, the allegations of
the complaint are deemed to be admitted and are
found to be true. Accordingly, we grant the Motion
for Summary Judgment.
On the basis of the entire record the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a corporation, has been engaged in
the operation of a retail food store at Kokomo, Indi-
ana. During the year ending October 27, 1978, a rep-
resentative period, Respondent in the course and con-
duct of its business operation sold and distributed
products with a gross value in excess of $500,000, and
purchased, transferred, and delivered to its business
in Kokomo, Indiana, goods and materials valued in
excess of $50,000 which were transported directly
from outside the State of Indiana.
We find, on the basis of the foregoing, that Respon-
dent has been at all times material herein, an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effec-
tuate the policies of the Act to assert jurisdiction
herein.
See 'National Shuffleboard & Billiard C.9 221 NLRB 297 (1975)
241 NLRB No. 145
889
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOI.VE)
Local 25, Retail Clerks International Association,
AFL CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II111. THE UNFAIR I.ABOR PRACTICES
A. The Independent 8(a)(1) Violations
Respondent, through Store Manager Cox, in April
1978 threatened to assign employees to more arduous
and lesser paying jobs and not to consider them for
job openings or promotion unless they refrained from
becoming or remaining members of, and giving assist-
ance to, the Union.
We find that by the aforesaid conduct Respondent
has interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed by
Section 7 of the Act and, by such conduct, Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
B. The 8(a)(3) and (1) Violations
Respondent, through its supervisors during May
and June 1978, engaged in the following discrimina-
tory conduct against the employees listed below be-
cause of their known or suspected union activity or
other concerted, protected activities:
(I) Transferred employees Brian Carver and Mark
Le Doux to more arduous and disagreeable job tasks.
(2) Reduced the number of work hours of employ-
ees Carver, Le Doux, and Kelsie Ollis.
(3) Reduced the hourly pay rate of employees Ollis
and Carver.
(4) Issued unwarranted reprimands to employees
Ollis and Carver.
(5) Discharged Ollis and Carver on June 21 and
July 17, 1978, respectively, and thereafter failed and
refused to reinstate them.
We find that, by the aforesaid conduct, Respondent
has discriminated in regard to the terms and condi-
tions of employment of its employees, thereby dis-
couraging membership in a labor organization and
that, by the aforesaid conduct, Respondent has en-
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
C. The 8(a)(5) and (1) Violations
On or about August 7, 1977, a majority of Respon-
dent's employees designated or selected the Union as
their representative for the purposes of collective bar-
gaining with Respondent in the following described
appropriate unit:
All grocery department employees and all other
employees engaged in the handling or selling of
items classified as groceries at the Respondent's
facility, exclusive of all owners, relatives of man-
agement, store manager, co-managers, all em-
ployees whose work is exclusively and wholly
performed within the meat department, all con-
tracted janitorial employees, all confidential em-
ployees, all professional employees, all guards
and supervisors as defined in the Act.
The Union is now, and at all material times since
on or about August 7, 1977, has been, the exclusive
bargaining representative of the employees in the unit
within the meaning of Section 9(a) of the Act. Re-
spondent and the Union are parties to a collective-
bargaining agreement effective from August 7, 1977,
to August 9, 1980. Commencing on June 29, 1978,
and continuing to date, and more particularly on July
14 and 19 and August 9, 1978, Respondent has re-
fused, and continues to refuse, the Union's requests to
bargain collectively with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and to negotiate, discuss,
or process grievances filed by the Union under the
established grievance procedure.
Accordingly, we find that Respondent has, since
June 29, 1978, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. TIHE EFFECT OF THE UNFAIR LABOR PRACTIC'ES
UPON COMMERCE
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. THE REMEDY
Having found that Respondent has engaged in, and
is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(5), (3), and (1) 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.
890
JADE OF KOKOMO
To remedy Respondent's violation of Section
8(a)(5) and (1) of the Act, we shall order that it give
effect to all the terms and conditions of the existing
contract, including the grievance procedures, and that
it bargain collectively in good faith, upon request,
with the Union as the exclusive collective-bargaining
representative of its employees in the said appropriate
unit.
To remedy Respondent's violations of Section
8(a)(3) and (1) of the Act, we shall order that it make
whole employees Carver, Ollis, and Le Doux for any
loss of benefits they may have suffered by reason of
Respondent's unlawful job transfers or reductions in
hours of work or hourly rates of pay. We shall further
order that Respondent offer employees Carver and
Ollis, who were discriminatorily discharged, immedi-
ate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by payment to them of a sum of money equal
to the amount they normally would have earned as
wages from the date of their termination to the date
of Respondent's offer of reinstatement, less net in-
terim earnings. All moneys to be paid to the above
employees shall be computed in the manner pre-
scribed in F. W. Woolworth Companv. 90 NLRB 289
(1950), with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). 2
Finally, in view of the nature of Respondent's vio-
lations herein, we shall further order that it cease and
desist from infringing in any other manner upon the
rights guaranteed employees by Section 7 of the Act.
The Board, on the basis of the foregoing and the
entire record, makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Jade of Kokomo, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local 25, Retail Clerks International Associ-
ation, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the acts described in section III, A, above.
Respondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and coerc-
ing, its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)( I) of the Act.
See. generally. sir Plumbing & learing Co,. 138 NI.RB 716 (1962) We
adhere to the Board's decision in Florida Steel, upra. and accordingly deny
the General Counsel's request, in its Motion for Summary Judgment. lotr
remedial interest at 9 percent
4. By the acts described in section III. B. above.
Respondent has discriminated, and is discriminating,
in regard to hire or tenure of employment or a term
or condition of employment to encourage or discour-
age membership in a labor organization and has
thereby engaged in, and is thereby engaging in, unfair
labor practices within the meaning of Section 8(a)(3)
and (I) of the Act.
5. By the acts described in section III, C, above,
Respondent did refuse, and is refusing, to bargain col-
lectively with the representative of its employees, and
thereby did engage in, and is engaging in, unfair labor
practices affecting commerce within the meaning 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 Respondent, Jade of
Kokomo, Inc.. Kokomo, Indiana, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to give effect to all the terms and con-
ditions of its existing contract, including the grievance
procedure, with Local 25, Retail Clerks International
Association, AFL-CIO, as the exclusive collective-
bargaining representative of the employees in the fol-
lowing appropriate bargaining unit:
All grocery department employees and other em-
ployees engaged in the handling or selling of
items classified as groceries at the Respondent's
facility, exclusive of all owners, relatives of man-
agement, store manager, co-managers, all em-
ployees whose work is exclusively and wholly
performed within the meat department, all con-
tracted janitorial employees, all professional em-
ployees, all guards and supervisors as defined in
the Act.
(b) Threatening to assign employees to more ardu-
ous and lesser paying jobs and not to consider them
for job openings or promotion unless they refrain
from becoming or remaining members of, or giving
assistance and support to, the Union.
(c) Discouraging employees from engaging in
union activities or other protected concerted activities
by transferring them to more arduous and lesser pav-
ing jobs, by reducing their hours of work or hourly
rate of pay, by issuing unwarranted reprimands, and
by discharging and refusing to reinstate them for that
reason.
(d) 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.
891
DECISIONS OF NA'IIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with, and process griev-
ances filed by, the above-named labor organization as
the exclusive representative of all the employees in
the aforesaid appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment.
(b) Offer immediate and full reinstatement to em-
ployees Kelsie Ollis and Brian Carver to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously en-
joyed, and make them and employee Mark Le Doux
whole for any loss of earnings they may have suffered
as a result of their unlawful discharge, transfer, or
reduction in hours of work or in hourly rate of pay in
the manner set forth in the section herein 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 as its Kokomo, Indiana. place of business
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Re-
gional Director for Region 25, 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
In the event that this Order is enforced by a Judgment of a United States
C'ourt 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 refuse to give effect to all the
terms and conditions of our existing contract, in-
cluding the grievance procedures, with Local 25,
Retail Clerks International Association, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT threaten to assign employees to
more arduous and lesser paying jobs and not to
consider them for openings or promotions unless
they refrain from becoming or remaining mem-
bers of, or giving assistance and support to, the
Union.
WE WILL NOT discourage our employees from
engaging in union activities or other protected
concerted activities by transferring them to more
arduous and lesser paying jobs, by reducing their
hours of work or hourly rate of pay, by issuing
them unwarranted reprimands, and by discharg-
ing and refusing to reinstate them for that rea-
son.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights guaranteed them in Section
7 of the Act.
WE WILL, upon request, bargain with and pro-
cess grievances filed by, the above-named labor
organization as the exclusive, representative of
all employees in the bargaining unit described
below, with respect to rates of pay, wages, hours
of employment and other terms and conditions
of employment. The bargaining unit is:
All grocery department employees and other
employees engaged in the handling or selling
of items classified as groceries at the Respon-
dent's facility, exclusive of all owners, relatives
of management, store manager, co-managers,
all employees whose work is exclusively and
wholly performed within the meat depart-
ment, all contracted janitorial employees, all
professional employees, all guards and super-
visors as defined in the Act.
WE WILL offer immediate and full reinstate-
ment to employees Kelsie Ollis and Brian Carver
to their former positions or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights and privileges previously enjoyed, and WE
WILL make them and employee Mark Le Doux
whole for any loss of earnings they may have
suffered as a result of the unlawful discharge,
transfer, or reduction in hours of work or hourly
rate of pay, by payment to them of a sum of
money equal to the amount of money they
would have earned from the date the unlawful
discharge or other action to the date of our offer
of reinstatement or other restorative action.
JADE OF KOKOMO, INC.
892