Mystic Shop N Bag

National Labor Relations Board - Board Decisions

Jan 6, 1978

234 N.L.R.B. 115 (N.L.R.B. 1978)

MYSTIC SHOP N BAG
Joseph S. Teschko, Inc. t/a Mystic Shop N Bag and
Retail Clerks Union Local 1358, Retail Clerks In-
ternational Association, AFLCIO. Case 4-CA-
8737
January 6, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on June 13, 1977, by Retail
Clerks Union Local 1358, Retail Clerks International
Association, AFL-CIO, herein called the Union, and
duly served on Joseph S. Teschko, Inc. t/a Mystic
Shop N Bag, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 4, issued a com-
plaint and notice of hearing on July 29, 1977, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the National La-
bor 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. On September 12, 1977, counsel for
the General Counsel filed directly with the Board a
Motion for Summary Judgment based on Respon-
dent's failure to file an answer as required by Sec-
tions 102.20 and 102.21 of the National Labor Rela-
tions Board's Rules and Regulations, Series 8, as
amended. An order transferring proceeding to the
Board and Notice To Show Cause was issued by the
Board on September 19, 1977. Respondent has filed
no response to the Notice To Show Cause and, ac-
cordingly. 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, Series 8, as amended, provides:
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
234 NLRB No. 17
the complaint, if no answer is filed, or any allega-
tion in the complaint not specifically denied or
explained in an answer filed, unless the respon-
dent 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 which issued on July 29, 1977, was
served on Respondent by registered mail and states
that "the Respondent shall file ... an answer to said
Complaint within 10 days from the service thereof
and that, unless it does so, all of the allegations in the
Complaint shall be deemed to be admitted to be true
and may be so found by the Board." According to
the uncontroverted allegations of the Motion for
Summary Judgment, Respondent's President, John
Teschko, by telephone communication on August 17,
1977, refused to assure counsel for the General
Counsel that an answer to the complaint would be
filed. 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 accordance with the
rules set forth above, the allegations of the complaint
are deemed to be admitted and are found to be true.
We shall, accordingly, grant the Motion for Summa-
ry Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of New Jer-
sey and is engaged in the operation of a grocery store
at its facility located in West Tuckerton, New Jersey.
During the past year, Respondent had gross revenues
valued in excess of $500,000 and purchased goods
valued in excess of $50,000 directly from points out-
side the State of New Jersey.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the me-
aning of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local 1358, Retail Clerks In-
ternational Association, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violations
On or about June 7 and 9, 1977, Respondent,
through Joseph Teschko, at its West Tuckerton, New
Jersey, facility, threatened to close its business if its
employees selected the Union as their collective-bar-
gaining representative.
Accordingly, we find that by the aforesaid conduct
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and by such con-
duct Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(l) of the Act.
B. The 8(a)(3) Violation
On or about June 9, 1977, Respondent terminated
employee Leonard Kalos because of his union activi-
ties and, at all times since then, Respondent has
failed and refused, and continues to fail and refuse,
to reinstate Leonard Kalos to his former or substan-
tially equivalent position of employment.
Accordingly, we find that, by the aforesaid conduct
Respondent has discriminated, and is discriminating,
in regard to hire or tenure of employment or any
term or condition of employment to discourage
membership in any labor organization, and by such
conduct Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Sec-
tion 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, inti-
mate, 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 commerce.
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.
Having also found that Respondent has discrimi-
natorily terminated and has refused to reinstate em-
' See, generally, Isis Plumbing & Heating Company, 138 NLRB 716
(1962).
ployee Leonard Kalos to his former or substantially
equivalent position, we shall order Respondent to
offer him immediate and full reinstatement to his
former position or, if such position no longer exists,
to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may
have suffered by payment to him of a sum of money
equal to the amount he normally would have earned
as wages from the date of his discharge to the date of
Respondent's offer of reinstatement, less net earn-
ings, with backpay and interest thereon to be com-
puted in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977).1
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Joseph S. Teschko, Inc. t/a Mystic Shop N
Bag, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks Union Local 1358, Retail Clerks
International Association, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. By the conduct described in section III, above,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights guar-
anteed in Section 7 of the Act, and has discriminated,
and is discriminating, in regard to hire or tenure or
terms or conditions of employment to discourage
membership in a labor organization, and by such
conduct Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Sec-
tion 8(a)(1) 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 Rela-
tions Board hereby orders that the Respondent, Jo-
seph S. Teschko, Inc. t/a Mystic Shop N Bag, West
Tuckerton, New Jersey, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to close its business if its employees
select Retail Clerks Union Local 1358, Retail Clerks
International Association, AFL-CIO, or any other
116
MYSTIC SHOP N BAG
labor organization, as their collective-bargaining rep-
resentative.
(b) Discouraging membership in, or activities on
behalf of, Retail Clerks Union Local 1358, Retail
Clerks International Association, AFL-CIO, or any
other labor organization, by discriminatorily dis-
charging or by otherwise discriminating in regard to
hire or tenure or terms or conditions of employment
of any of its employees because they join or assist the
above-named Union, or any other labor organiza-
tion.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed 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 Leonard Kalos immediate and full rein-
statement to his former position, or, if that position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
pay he may have suffered by reason of the discrimi-
nation against him in the manner set forth in the
section above 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 oth-
er records necessary to analyze the amount of back-
pay due under the terms of this Order.
(c) Post at its West Tuckerton, New Jersey, facility
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the Re-
gional Director for Region 4, 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.
(d) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
2 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 NOT threaten to close our business if
our employees select Retail Clerks Union Local
1358, Retail Clerks International Association,
AFL-CIO, or any other labor organization, as
their collective-bargaining representative.
WE WILL NOT discourage membership in, or
activities on behalf of, Retail Clerks Union Local
1358, Retail Clerks International Association,
AFL-CIO, or any other labor organization, by
discriminatorily discharging or by otherwise dis-
criminating in regard to hire or tenure or terms or
conditions of employment of any of our employ-
ees because they join or assist the above-named
Union, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7 of the Na-
tional Labor Relations Act, as amended.
WE WILL offer Leonard Kalos immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority
or other rights and privileges previously enjoyed,
and make him whole for any loss of pay he may
have suffered by reason of the discrimination
against him, plus interest.
JOSEPH S. TESCHKO, INC.
T/A MYSTIC SHOP N
BAG
117