Rex Gene Foods

National Labor Relations Board - Board Decisions

Dec 31, 1998

327 N.L.R.B. 70 (N.L.R.B. 1998)

327 NLRB No. 70
1
NOTICE: This opinion is subject to formal revision before publication in the
Board volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Rex Gene Foods and Local 1262, United Food and
Commercial Workers Union, AFL-CIO, CLC.
Case 22-CA-22522
December 31, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
Upon a charge filed by Local 1262, United Food and
Commercial Workers union, AFL-CIO, CLC (the Union)
on February 9, 1998 and amended on March 3 and June
18, 1998, the Acting General Counsel of the National
Labor Relations Board issued a complaint on June 26,
1998, against Rex Gene Foods, the Respondent, alleging
that it has violated Section 8(a)(1) and (3) of the National
Labor Relations Act. Although properly served copies of
the charges and complaint, the Respondent failed to file
an answer.
On November 27, 1998, the General Counsel filed a
Motion for Summary Judgment with the Board. On De-
cember 1, 1998, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letters dated July 16, July 29, and August 11, 1998, noti-
fied the Respondent that unless an answer was received,
a Motion for Summary Judgment would be filed. The
Respondent did not file an answer.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation, with an office and place of business in Red
Bank, New Jersey, and places of business in West Long
Branch, Sayreville, Rahway, and Manalapan, New Jer-
sey, has been engaged in the operation of retail and
wholesale grocery stores. During the 12-month period
preceding the issuance of the complaint, the Respondent,
in conducting its business operations, purchased and re-
ceived at its West Long Branch, Sayreville, Rahway,
Manalapan, and Red Bank, New Jersey facilities goods
and materials valued in excess of $50,000 directly from
points outside the State of New Jersey.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On or about January 24, 1998, the Respondent, by its
agent and supervisor Store Manager Anthony Rocco
(Rocco), interrogated its employees about their union
membership, activities, and sympathies, and made un-
specified threats of retaliation if its employees supported
the Union.
On or about January 26, 1998, at its Long Branch fa-
cility, the Respondent, by Rocco, interrogated its em-
ployees about their union membership, activities, and
sympathies; threatened to close down its store if its em-
ployees supported the Union; and threatened its employ-
ees with loss of jobs if they supported the Union.
On or about January 27, 1998, at its Long Branch fa-
cility, the Respondent by Rocco, interrogated its employ-
ees about their union membership, activities, and sym-
pathies, and told employees that an agent of the National
Labor Relations Board was going to disclose the names
of employees who signed cards for the Union and em-
ployee in-house organizers.
On or about a date currently unknown during the last
week of January 1998, at its Long Branch facility, the
Respondent, by Rocco, interrogated its employees about
their union membership, activities, and sympathies;
threatened to close down its store if its employees sup-
ported the Union; and threatened its employees with loss
of jobs if they supported the Union.
On or about February 2, 1998, at its Long Branch fa-
cility, the Respondent by Rocco, interrogated its employ-
ees about their union membership, activities, and sym-
pathies; threatened to close down its store if its employ-
ees supported the Union; and threatened its employees
with loss of jobs if they supported the Union.
On or about February 3, 1998, at its Long Branch fa-
cility, the Respondent by Rocco, told employees that an
agent of the National Labor Relations Board was going
to disclose the names of employees who signed cards for
the Union and employee in-house organizers.
On about February 6 and 7, 1998, at its Long Branch
facility, the Respondent by Rocco, told employees that
employee Margery Chulsky was discharged because of
her union membership, activities, and sympathies.
NATIONAL LABOR RELATIONS BOARD2
On or about a date currently unknown during the sec-
ond week of February 1998, at its Red Bank facility, the
Respondent, by its agent and supervisor President Gene
Casazza, interrogated its employees about their union
membership, activities, and sympathies.
On or about a date currently unknown during the sec-
ond week of March 1998, at its West Long Branch facil-
ity, the Respondent, by its agent and supervisor Assistant
Store Manager Nelson, threatened employees with a cut
in their scheduled hours and pay rate if employees sup-
ported the Union; threatened employees with taking
away their ability to choose the hours that they work if
employees supported the Union; and promised employ-
ees a raise if they voted for the Union.
The Respondent, by its agent and supervisor Accounts
Payable Supervisor Marilyn Magistrado and by a super-
visor whose first name is Delores at its West Long
Branch facility, on or about a date currently unknown in
late January or early February, 1998, and between Febru-
ary 6 and March 20, 1998, interrogated its employees
about the union membership, activities, and sympathies
of other employees.
On or about February 2, 1998, the Respondent issued
two written warnings to its employee Margery Chulsky
and on February 4, 1998, issued another written warning
to Chulsky.
On or about February 4, 1998, the Respondent, by Ca-
sazza and its agent and supervisor Lisa LaMattina, de-
tained Chulsky at its Red Bank facility against her ex-
press wishes.
On or about February 4, 1998, the Respondent dis-
charged its employee Margery Chulsky.
The Respondent engaged in the conduct described
above as to Chulsky because Chulsky joined and assisted
the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent has been interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act; discriminating in regard to the hire
or tenure or terms and conditions of employment of its
employees, thereby discouraging membership in a labor
organization; and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(3)
and (1) by issuing warnings to and discharging Margery
Chulsky, we shall order the Respondent to offer the dis-
criminatee full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights
or privileges previously enjoyed, and to make her whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against her. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). The
Respondent shall also be required to remove from its
files any and all references to the unlawful warnings and
discharge, and to notify the discriminatee in writing that
this has been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Rex Gene Foods, Red Bank, West Long
Branch, Sayreville, Rahway, and Manalapan, New Jer-
sey, its officers, agents, successors, and assigns, shall
1.Cease and desist from
(a) Interrogating employees about their union member-
ship, activities, and sympathies; making unspecified
threats of retaliation if employees supported the Union;
threatening to close down its store if employees sup-
ported the Union; threatening employees with loss of
jobs if they supported the Union; telling employees that
an agent of the National Labor Relations Board was go-
ing to disclose the names of employees who signed cards
for the Union and employee in-house organizers; telling
employees that Margery Chulsky was discharged be-
cause of her union membership, activities, and sympa-
thies; threatening employees with a cut in their scheduled
hours and pay rate if employees supported the Union;
threatening employees with taking away their ability to
choose the hours they work if employees supported the
Union; and promising employees a raise if they voted for
the Union.
(b) Issuing written warnings to employees, detaining
them against their express wishes, and discharging them,
all because they join or assist the Union and engaged in
concerted activities, and to discourage employees from
engaging in these activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2.Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Margery Chulsky full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Margery Chulsky whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, with interest, in the manner
set forth in the remedy section of this decision.
REX GENE FOODS 3
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Margery Chulsky and the unlawful warnings issued to
her, and within 3 days thereafter notify her in writing that
this has been done and that the warnings and discharge
will not be used against her in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in Red Bank, West Long Branch, Sayreville,
Rahway, and Manalapan, New Jersey, copies of the at-
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 24,
1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. December 31, 1998
Sarah M. Fox, Member
Wilma B. Liebman, Member
J. Robert Brame III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

1 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment 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
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT interrogate employees about their mem-
bership in activities on behalf of, and sympathies with
United Food and Commercial Workers Union Local
1262, AFL-CIO, CLC.
WE WILL NOT make unspecified threats of retaliation if
employees supported the Union.
WE WILL NOT threaten to close down our store if em-
ployees supported the Union.
WE WILL NOT threaten employees with loss of jobs if
they supported the Union.
WE WILL NOT tell employees that an agent of the Na-
tional Labor Relations Board was going to disclose the
names of employees who signed cards for the Union and
employee in-house organizers.
WE WILL NOT tell employees that Margery Chulsky was
discharged because of her union membership, activities,
and sympathies.
WE WILL NOT threaten employees with a cut in their
scheduled hours and pay rate if employees supported the
Union.
WE WILL NOT threaten employees with taking away
their ability to choose the hours they work if employees
supported the Union.
WE WILL NOT promise employees a raise if they voted
for the Union.
WE WILL NOT issue written warnings to employees be-
cause they join or assist the Union or engage in concerted
activities.
WE WILL NOT detain employees at our Red Bank facil-
ity against their express wishes because they join or as-
sist the Union or engage in concerted activities.
WE WILL NOT discharge employees because they join or
assist the Union and engage in concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Margery Chulsky full reinstatement to her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Margery Chulsky whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, with interest.
NATIONAL LABOR RELATIONS BOARD4
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Margery Chulsky and the unlawful warnings
issued to her, and within 3 days thereafter notify her in
writing that this has been done and that the warnings and
discharge will not be used against her in any way.
REX GENE FOODS