Valley Bakery

National Labor Relations Board - Board Decisions

Jun 19, 1975

218 N.L.R.B. 686 (N.L.R.B. 1975)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Samuel G. Saghatelian d/b/a Valley Bakery and
Edward Benefield . Case 20-CA-9765
June 19, 1975
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on November 29, 1974, by
Edward Benefield, an Individual, herein called
Benefield, and duly served on Samuel G. Saghatelian
d/b/a Valley Bakery, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 20,
issued a complaint on January 14, 1975, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce within the meaning of Sections
8(a)(1) and (3) and 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing before an
Administrative Law Judge were duly served on the
parties to the proceeding.
With respect to the unfair labor practices the
complaint alleges , in substance, that Respondent
discharged Benefield because of his activities on
behalf of the Bakery & Confectionery Workers
Union, Local 85, herein called the Union, in seeking
to enforce a currently effective collective-bargaining
agreement between Respondent and the Union.
Respondent did not file an answer to the complaint.
Counsel for the General Counsel, on February 20,
1975, filed directly with the Board a motion for
judgment on the pleadings based on Respondent's
failure to file an answer as required by Section 102.20
and 102.21 of the Board's Rules and Regulations,
Series 8, as amended. The Board subsequently issued
an order transferring the proceeding to the Board
and a notice to show cause why the General
Counsel's motion for judgment on the pleadings
should not be granted. Respondent failed to respond
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.
218 NLRB No. 88
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 states that unless an answer
to the complaint is filed by the Respondent within 10
days of service thereof "all of 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 uncontroverted motion for judg-
ment on the pleadings, counsel for the General
Counsel, after unsuccessful attempts to reach Re-
spondent's attorney by telephone, requested, by
letter of January 28, 1975, that an answer be filed
promptly and advised that, in the event an answer
were not filed, summary judgment would be sought.
As noted, Respondent at no time filed an answer to
the complaint nor did it file a response -to the notice
to show cause. No good cause for failure to file an
answer 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 judgment
on the pleadings.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a sole proprietorship, owned
and operated by Samuel G. Saghatelian and doing
business under the name of Valley Bakery, in Fresno,
California, where it is engaged in the production and
wholesale distribution of bakery products. During
the past year Respondent sold goods valued in excess
of $50,000 directly to customers located outside the
State of California. During the same period it
purchased and received at its Fresno, California,
location goods valued in excess of $50,000 directly
from suppliers located outside the State of California.
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
VALLEY BAKERY
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Bakery & Confectionery Workers Union, Local 85,
is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On or about October 25, 1974, Respondent
discharged its employee, Edward Benefield, because
of his activities on behalf of the Union in seeking to
enforce the collective-bargaining agreement between
Respondent and the Union, effective on its face from
July 1, 1972, to June 30, 1975, or because he engaged
in other protected and concerted activities.
We ford that by the aforesaid conduct Respondent
discriminated in regard to the terms and conditions
of employment of its employee thereby discouraging
membership in a labor organization and that by such
conduct Respondent has engaged in and is engaging
in an unfair labor practice within the meaning of
Section 8(a)(3)" and (1) of the Act.
As the unfair labor practice committed by the
Respondent was of a character which goes to the
very heart of the Act, we shall order the Respondent
to cease and desist from infringing in any other
manner upon the rights of, employees guaranteed by
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations
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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in an unfair labor practice 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.
To remedy Respondent's violation of Section
8(a)(3) and (1), we shall order that Respondent offer
Edward Benefield immediate and full reinstatement
to his former job or, if such job 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 earnings he may have
687
suffered by payment to him of sums 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 , in accordance with the formula set forth in
F.W. Woolworth Company, 90 NLRB 289 (1950), and
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Samuel G . Saghatelian d/b/a Valley Bakery, a
sole proprietorship , is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By discriminating in regard to the hire and
tenure of Edward Benefield because of his union
activities or because he engaged in other protected or
concerted activities , thereby discouraging member-
ship in or activities on behalf of a labor organization,
Respondent has engaged in an unfair labor practice
within the meaning of Section 8 (a)(3) and (1) of the
Act.
3. The aforesaid unfair labor practice is an unfair
labor practice 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
Relations Board hereby orders that Respondent,
Samuel G. Saghatelian d/b/a Valley Bakery, Fresno,
California, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on
behalf of the Union, or any other labor organization,
by discharging employees or otherwise discriminat-
ing against employees in regard to hire and tenure of
employment because of their union activities or other
protected or concerted activities.
(b) 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 Edward Benefield immediate and full
reinstatement to his former job or, if such job 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
earnings in the manner set forth in the section herein
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,
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Respondent's place of business in
Fresno, California, copies of the attached notice
marked "Appendix." 1 Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees 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 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
I 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
I WILL NOT discourage membership in or
activities on behalf of Bakery & Confectionery
Workers Union, Local 85, or any other labor
organization, by discharging employees or other-
wise discriminating against employees in regard
to hire or tenure of employment because of their
union activities or other concerted or protected
activities.
I WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
I WILL offer to Edward Benefield immediate
and full reinstatement to his former job at Valley
Bakery or, if that job no longer exists, to a
substantially equivalent position, without preju-
dice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any
loss of earnings suffered by, reason of the
discrimination practiced against him.
SAMUEL G. SAGHATELIAN
d/b/ a VALLEY BAKERY