Tori Dress, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1976

222 N.L.R.B. 414 (N.L.R.B. 1976)

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tori Dress, Inc. and Local 57, International Ladies'
Garment Workers' Union, AFL-CIO. Case
29-CA-4410
January 19, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on June 13, 1975, by Local 57,
International Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union, and duly served
on Tori Dress, Inc., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 29, is-
sued a complaint on July 16, 1975, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an Administra-
tive Law Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that Respondent has inter-
fered with, restrained, and coerced its employees in
the exercise of their rights guaranteed by Section 7 of
the Act in violation of Section 8(a)(1) by coercively
interrogating its employees regarding their union ac-
tivities, by warning its employees to refrain from
union membership, and by threatening its employees
with discharge and other reprisals if they became
union members. The complaint further alleges that
on or about June 6, 1975, Respondent, in violation of
Section 8(a)(3), discharged its employees Rosa Her-
nandez and Mireya Westhall and thereafter failed
and refused to reinstate them because the employees
joined and assisted the Union. Although duly served
with the complaint, Respondent failed to file an an-
swer thereto.
On October 14, 1975, the Acting General Counsel,
hereinafter the General Counsel, by counsel, filed di-
rectly with the Board a Motion for Summary Judg-
ment based on Respondent's failure to file an answer
to the complaint. Subsequently, on October 23, 1975,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent did not file
a response to Notice to Show Cause.
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 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 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 ad-
mitted 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 I specifically stated that unless an an-
swer to the complaint was filed within 10 days of
service thereof "all the allegations in the Complaint
shall be deemed to be admitted by it to be true and
may be so found by the Board." Further, according
to the allegations of the Motion for Summary Judg-
ment, on September 12, 1975, counsel for the Gener-
al Counsel mailed a registered letter to Respondent's
last known address, with a copy to the home address
of Respondent's president, Antonio Toribio, notify-
ing it that summary judgment would be sought un-
less an answer was filed immediately. Those letters
were returned by the U.S. Postal Service as un-
claimed. The Regional Director certified that, as of
October 7, 1975, an answer had not been filed.
In view of Respondent's failure to answer, under
the rule set forth above, no good cause having been
shown for such failure, the uncontroverted allega-
tions of the complaint are deemed admitted and are
found to be true. Accordingly, we shall grant the Mo-
tion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
1 The Motion for Summary Judgment alleges that the Respondent moved
from its Corona, New York, business address, leaving no forwarding ad-
dress The record is clear that Respondent was duly served with the charge
and the complaint and notice of hearing
222 NLRB No. 59
TORI DRESS, INC. 415
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, is engaged
in the manufacture, sale, and distribution of ladies'
apparel and related products. During the past year, a
representative period, Respondent caused to be man-
ufactured, sold, and distributed at its plant in Coro-
na, New York, products valued in excess of $50,000,
of which products valued in excess of $50,000 were
furnished to, among others, Budget Dress Corpora-
tion, which enterprise is located in New York State
and annually produces goods valued in excess of
$50,000 which it ships directly out of New York
State.
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
meaning 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
Local 57, International Ladies' Garment Workers'
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
coerced its employees in the exercise of the rights
guaranteed them under Section 7 of the Act, and by
such conduct Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(1) of
the Act.
B. The 8(a)(3) and (1) Violations
On or about June 6, 1975, Respondent discharged
its employees Rosa Hernandez and Mireya Westhall,
and at all times since has failed and refused to rein-
state said employees to their former or substantially
equivalent positions of employment because they
joined and assisted the Union and engaged in other
concerted activity for the purpose of collective bar-
gaining and mutual aid and protection.
Accordingly, we find that by Respondent's afore-
said discharge of employees Rosa Hernandez and
Mireya Westhall, and by its failure and refusal to
reinstate said employees, Respondent discriminated
in regard to the terms and conditions of employment
of its employees, thereby discouraging membership
in a labor organization and that by such conduct Re-
spondent 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
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violations
Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act by engaging in
the following acts and conduct:
1. On or- about June 6, 1975, Respondent interro-
gated its employees concerning the employees' mem-
bership in, activities on behalf of, and sympathy for
the Union.
2. On or about June 6, 1975, and on various other
dates presently unknown during June 1975, Respon-
dent warned and directed its employees to refrain
from becoming or remaining members of the Union,
and to refrain from giving any assistance or support
to it.
3. On or about June 6, 1975, and on various other
dates presently unknown during June 1975, Respon-
dent threatened its employees with discharge and
other reprisals if they became or remained members
of the Union, and if they gave any assistance and
support to it.
Accordingly, we find that by the aforesaid conduct
Respondent has interfered with, restrained, and
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 mean-
ing 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 found that the unfair labor practices com-
mitted by Respondent were of a character which
goes to the very heart of the Act, we shall also order
Respondent to cease and desist from infringing in
any,other manner upon the rights of employees guar-
anteed by Section 7 of the Act.
We have found Respondent discriminatorily dis-
charged and failed and refused to reinstate the dis-
criminatees, employees Rosa Hernandez and Mireya
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westhall, to their former or substantially equivalent
positions, and we shall order that said employees be
offered reinstatement to their former or substantially
equivalent positions, or, if Respondent is no longer in
business at its Corona, New York, location, that they
be offered reinstatement at any location in which Re-
spondent has reestablished or in which it does reopen
its business. We shall also order that Respondent
make said employees whole for any loss of pay suf-
fered because of the discrimination against them.
Backpay shall be based upon'the earnings they nor-
mally would have received from the date of their dis-
charge to the date Respondent offers reinstatement if
Respondent has reestablished or does reopen its
business at any location; or, if Respondent has not
reestablished its business, the backpay liability will
run from the date the discriminatees were discharged
to the date that Respondent would normally have
terminated such employees when it liquidated its
business 2 as determined by compliance. The back-
pay shall be computed on the basis set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). In
view of the circumstances herein, we shall also order
that Respondent mail copies of the attached notice
marked "Appendix" to the Union and all employees
employed by it during 1975 at their last known ad-
dresses, and if Respondent has reestablished or does
reopen its business it shall also post the notice at
such location.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Tori Dress, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 57, International Ladies' Garment Work-
ers' Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed
in Section 7 of the Act, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and ten-
ure of employment of employees, thereby discourag-
ing membership in or activities on behalf of a labor
organization, Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
2 Mr. Trailers Ltd, 216 NLRB No. 181 (1975)
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 Re-
lations Board hereby orders that the Respondent,
Tori Dress, Inc., Corona, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning the em-
ployees' membership in, activities on behalf of, and
sympathy for Local 57, International Ladies' Gar-
ment Workers' Union, AFL-CIO, or any other labor
organization.
(b) Warning and directing its employees to refrain
from becoming or remaining members of the above-
named Union, or any other labor organization, and
to refrain from giving any assistance or support to it.
(c) Threatening its employees with discharge and
other reprisals if they become or remain members of
the above-named Union, or any other labor organi-
zation, and if they give any assistance and support to
it.
(d) Discouraging membership in or activities on
behalf of Local 57, International Ladies' Garment
Workers' Union, AFL-CIO, or any other labor orga-
nization, by discharging or terminating and refusing
to reinstate employees or otherwise discriminating
with regard to the hire or tenure of its employees
because they join or assist the above-named organi-
zation, or any other labor organization, or engage in
concerted activity for the purpose of collective bar-
gaining or for their mutual aid and protection.
(e) 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.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to reinstate Rosa Hernandez and Mireya
Westhall to their former jobs or, if those positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, at any location where its business is
reestablished or reopened.
(b) Make whole employees Rosa Hernandez and
Mireya Westhall for any losses suffered by reason of
the discrimination against them as set forth in the
section of this Decision 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
TORI DRESS, INC.
backpay due under the terms of this Order.
(d) Post at its reestablished or reopened operation
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly
signed by Respondent's representative, shall be post-
ed 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) Mail copies of the aforesaid notice to Local 57,
International Ladies' Garment Workers' Union,
AFL-CIO, and all employees employed by Respon-
dent during 1975 at their last known addresses. Cop-
ies of said notice after being duly signed by
Respondent's representative will be provided by the
Regional Director for Region 29.
(f) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
3In 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 interrogate our employees con-
cerning their membership in, activities on behalf
417
of, and sympathy for Local 57, International La-
dies' Garment Workers' Union, AFL-CIO, or
any other labor organization.
WE WILL NOT warn and direct our employees
to refrain from becoming or remaining members
of the above-named Union, or any other labor
organization, and to refrain from giving any as-
sistance or support to it.
WE WILL NOT threaten our employees with dis-
charge and other reprisals if they become or re-
main members of the above-named Union, or
any other labor organization, and if they give
any assistance and support to it.
WE WILL NOT discourage membership in or ac-
tivities on behalf of Local 57, International La-
dies' Garment Workers' Union, AFL-CIO, or
any other labor organization, by discharging or
terminating and refusing to reinstate employees,
or otherwise discriminating with regard to the
hire or, tenure of our employees because they
join or assist the above-named organization, or
any other labor organization, or engage in con-
certed activity for the purpose of collective bar-
gaining or for their mutual aid and protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL offer to reinstate Rosa Hernandez
and Mireya Westhall to their former jobs or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, at any
location where our business is reestablished or
reopened.
WE WILL make whole employees Rosa Her-
nandez and Mireya Westhall for losses they suf-
fered by reason of the discrimination against
them.
TORT DRESS, INC.