Reliable Carpet Co.

National Labor Relations Board - Board Decisions

Nov 26, 1973

207 N.L.R.B. 544 (N.L.R.B. 1973)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Francis Kositz d/b/a Reliable Carpet Company and
Warren Heikkila. Case 7-CA-10280
Section 102.20 of the Board's Rules and Regulations,
Series 8 , as amended . Subsequently , on June 15,
1973, the Board issued an order transferring the
November 26, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on April 6, 1973, by Warren
Heikkila, an individual, herein called the Charging
Party, and duly served on Francis Kositz , d/b/a
Reliable Carpet Company, herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 7, issued a complaint and notice of hearing
on May 14, 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)(3) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge and 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 on or about
February 6, 1973, the Respondent discharged War-
ren Heikkila, the Charging Party, and since that date
has failed and refused, and is failing and refusing, to
reinstate the Charging Party to his former position of
employment because the Charging Party had at-
tempted to enforce the collective-bargaining agree-
ment between United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, Carpenters
District Council, Detroit Resilient Floor Decorators
Local Union No. 2265, herein called the Union, and
the Respondent; because the Charging Party had
complained of the quality of representation received
by employees of the Respondent from the Union
with respect to the Union's enforcement of the
collective-bargaining agreement with Respondent
and the Union's processing and handling of griev-
ances of employees of the Respondent; and because
the Charging Party had engaged in other protected
concerted activities for the purpose of collective
bargaining or other mutual aid or protection. By
these acts, the complaint alleges that Respondent
violated Section 8(a)(3) and (1) of the Act.
On June 11, 1973, counsel for the General Counsel
filed directly with the Board motions for transfer and
continuance of the case before the Board and for
summary judgment, with attachments, based on
Respondent's failure to file an answer as required by
proceeding to the Board and a notice to show cause
why the General Counsel's motion should not be
granted. The Respondent failed to file a response to
the notice to show cause.
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 served on the
Respondent 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 true and may
be so found by the Board." Further, on June 1, 1973,
the Regional Director directed a letter to the
Respondent which served notice on it that unless it
filed an answer to the complaint in this proceeding
by June 5, 1973, counsel for the General Counsel
would file a Motion for Summary Judgment. To date
the Respondent has failed to file an answer to the
complaint and has given no reason for its failure to
do so. As the Respondent had not filed an answer
within 10 days from the service of the complaint, nor
within the extended time afforded it by the Regional
Director, and as no good cause to the contrary has
been shown, in accordance with the rule set forth
above, the allegations of the complaint herein are
207 NLRB No. 71
RELIABLE CARPET COMPANY 545
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 THE RESPONDENT
At all times material herein, the Respondent has
maintained its only office and place of business at
4210 13th Street in the city of Wyandotte and State
of Michigan, herein called the Wyandotte place of
business. The Respondent is, and has been at all
times material herein, engaged in the commercial
and contract installation of carpet, linoleum, and
related products. The Wyandotte place of business
located at Wyandotte, Michigan, is the only facility
involved in this proceeding. During the year ending
December 31, 1972, which period is representative of
its operations during all times material herein, the
Respondent, in the course and conduct of its
business operations, performed carpet and linoleum
installation services valued in excess of $500,000, of
which services valued in excess of $50,000 were
performed for Sears, Roebuck and Company, which
annually receives gross revenue from its Michigan
retail operations in excess of $500,000 and which
annually purchases in excess of $50,000 in value of
goods and materials from suppliers located outside
the State of Michigan which are shipped directly to
its Michigan locations.
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
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Carpenters District Council,
Detroit Resilient Floor Decorators Local Union No.
2265 , is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On or about February 6, 1973, the Respondent
discharged Warren Heikkila, the Charging Party,
and since that date has failed and refused, and is
failing and refusing, to reinstate him to his former
position of employment because he had attempted to
enforce the collective-bargaining agreement between
the Union and the Respondent; because the Charg-
ing Party had complained of the quality of represent-
ation received by employees of the Respondent from
the Union with respect to the Union's enforcement
of the collective-bargaining agreement with the
Respondent and the Union's processing and han-
dling of grievances of employees of the Respondent;
and because the Charging Party engaged in other
protected concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion.
Accordingly, by discharging and failing and
refusing to reinstate Warren Heikkila, the Charging
Party, to his former position of employment for the
reasons alleged in the complaint, we find that the
Respondent did discriminate, and is discriminating,
in regard to the hire or tenure or terms or conditions
of employment of its employees, thereby encourag-
ing membership in a labor organization, and 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)(3) and (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 Respondent discriminatorily
discharged Warren Heikkila, the Charging Party,
and discriminatorily failed and refused to reinstate
him, we shall order that the Respondent offer him
immediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole
for any loss of earnings he may have suffered by
reason of such discrimination, by payment of a sum
of money equal to that which he normally would
1 Jerry C. Wilson, Curtis Wilson and Rodney V. Wilson d/b/a Wilson &
Sons, 193 NLRB 350, and cases cited therein
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have earned as wages from the date of discharge to
the date of said offer of reinstatement, less his net
earnings during such period, with backpay computed
on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289,
294, and with interest thereon as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB
716.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Francis Kositz d/b/a Reliable Carpet Compa-
ny is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, Carpenters District Council,
Detroit Resilient Floor Decorators Local Union No.
2265, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging and failing and refusing to
reinstate Warren Heikkila, the Charging Party, to his
former position of employment because he had
attempted to enforce the collective-bargaining agree-
ment between the Union and Respondent; because
the Charging Party had complained of the quality of
representation received by employees of the Respon-
dent from the Union with respect to the Union's
enforcement of the collective-bargaining agreement
with the Respondent and the Union's processing and
handling of grievances of employees of the Respon-
dent; and because the Charging Party had engaged
in other protected concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, the Respondent has engaged in, and is
engaging in, unfair labor practices within the
meaning of Section 8(a)(3) and (1) 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.
membership in or assistance to the Union, or any
other labor organization.
(b) In any like or related manner interfering with,
restraining, 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 Warren Heikkila, the Charging Party,
immediate and full reinstatement to his former
position or, if that position no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have
suffered as a result of the discrimination 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
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Wyandotte, Michigan, place of
business copies of the attached notice marked
"Appendix." 2 Copies of' said notice, on forms
provided by the Regional Director for Region 7,
after being duly signed by Respondent's representa-
tive, 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.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
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."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Francis Kositz d/b/a Reliable Carpet Company,
Wyandotte, Michigan, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees, or refusing or failing
to reinstate discharged employees to.their former
positions, or by any other means discriminating in
regard to their hire or tenure or terms or conditions
of employment, in order to encourage employees'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any of our employees,
or refuse or fail to reinstate any discharged
employees to their former positions, or by any
other means discriminate in regard to their hire or
tenure or terms or conditions of employment, in
order to encourage employees' membership in or
RELIABLE CARPET COMPANY
assistance - to United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, Carpenters
District Council, Detroit Resilient Floor Decora-
tors Local Union No . 2265 , or any other labor
organization.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Warren Heikkila immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially
equivalent 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 as a result of the discrimina-
tion against him.
547
FRANCIS KOSITZ D/B/A
RELIABLE CARPET
COMPANY
(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, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
313-226-3200.