Golden Age Chairmoblie, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Golden Age Chairmobile, Inc. and Service Employees International Union, Local 200, AFL-CIO. Case 3- CA-8461 June 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELI.O AND TRUESDAI.E Upon a charge and an amended charge filed on April 25, 1978, and June 9, 1978, by Service Employ- ees International Union, Local 200, AFL-CIO, herein called the Union, and duly served on Golden Age Chairmobile, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint and notice of hearing on March 8, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended.' Copies of the charge, complaint, and no- tice of hearing before an administrative law judge were duly served on the parties to the proceeding. Respondent failed to file an answer to the complaint. On April 9, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based on Respondent's failure to file an answer as required by Sections 102.20 and 102.21 of the Board's Rules and Regulations, Series 8, as amended. The Order transferring the proceeding to the Board and the Notice To Show Cause were issued by the Board on April 18, 1979. Respondent has since filed no response to the Notice To Show Cause, and accordingly the allegations of the Motion for Sum- mary Judgment stand uncontroverted. On April 27, 1979, counsel for the General Counsel filed a Re- sponse to the Notice To Show Cause in support of his Motion for Summary Judgment.2 I In accord with Sees. 102.18 and 101.9(bX2) of the National Labor Rela- tions Board Rules and Regulations. Series 8, as amended, the earlier com- plaint and amended complaint issued herein on June 22, 1978, and Septem- ber 1, 1978, to which Respondent filed answers, were withdrawn pursuant to an informal settlement agreement executed on November 13, 1978, and ap- proved by the Regional Director on November 14, 1978. On March 2, 1979, the Acting Regional Director withdrew approval of that part of the settle- ment agreement which set forth the 8(aX3) allegations regarding employee James Buscemi. Thereafter, on March 8, 1979, the Regional Director issued the instant complaint. As set forth in the complaint, Respondent has failed to comply only with the terms of the settlement agreement regarding the 8(a)3) allegations of the earlier complaints but not with those regarding the 8(aX I) allegations set forth therein. Accordingly, the instant complaint is concerned solely with those 8(a) 3) allegations. I In his response to the Notice To Show Cause in support of his Motion for Summary Judgment, counsel for the General Counsel stated that she at- tempted to serve the Motion for Summary Judgment on Respondent on April 6, 1979, by certified mail. Such service was refused by Respondent and the motion was returned to the Regional Office. Thereafter, on April 10, 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 Rule 102.20 of the Board's Rules and Regulations, 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 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 admit- ted 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 Re- spondent by registered mail specifically states that unless an answer to the complaint is filed by Respon- dent within 10 days of service thereof'all of the alle- gations in the Complaint shall be deemed to be ad- mitted to be true and may be so found by the Board." Further, according to the uncontroverted allegations of the Motion for Summary Judgment, Respondent was notified by a letter dated March 23, 1979, that summary judgment would be sought herein unless an answer to the complaint was filed by April 3, 1979. 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 hav- ing been shown,3 in accordance with the rules set forth above, the allegations of the complaint are deemed admitted as true and are so found by the Board. Accordingly, General Counsel's Motion for Summary Judgment is hereby granted. On the basis of the entire record, the Board makes the following: 1979, counsel for the General Counsel mailed the motion to Respondent b regular mail. As of the date of the response, the motion and accompanying letter had not been returned. The withdrawal of the earlier June 22 and September 1, 1978. complaints resulted in the reestablishment of the situation existing prior to the issuance of the complaints. Thus, the answers filed to the complaints previously is- sued, which had been withdrawn. do not qualit) as answers to the new complaint which issued on March 8. 1979. See Rove Kniiing ti/lt. In., 228 NLRB 746 (1977). 243 NLRB No. 22 160 GOLDEN AGE CHAIRMOBILE, INC. FINDINGS 01 FACT I. TE BUSINESS OF RESPONDENT Respondent, a New York coporation, is engaged in the business of providing and performing transporta- tion services for sick and injured individuals. Respon- dent's principal office and place of business, located at 339 East Avenue, Rochester, New York, is the only facility involved in this proceeding. Annually, Re- spondent receives revenues in excess of $50,000 from the provision of transportation services to institu- tional users in the State of New York, each of which institutional users annually receives goods and ser- vices valued in excess of $50,000 directly from points outside the State of New York. We find, on the basis of the foregoing, that Respon- dent 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 INVO LVED Service Employees International Union, Local 200, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. II1. THE UNFAIR LABOR PRACTICES On or about April 3, 1978, Respondent discharged employee James Buscemi because he engaged in pro- tected activities on behalf of the Union or partici- pated in union activity or gave assistance or support to the Union. Since that time, based on the above activity, Respondent has failed and refused, and con- tinues to fail and refuse, to reinstate James Buscemi to his former or substantially equivalent position of employment. Accordingly, we find that, by the aforesaid con- duct, Respondent discriminated in regard to the terms and conditions of employment of its employees, thereby discouraging membership in a labor organi- zation, and that, by such conduct, Respondent en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1)4 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 operations ' Although not alleged in the complaint nor asserted by the General Coun- sel as a separate violation, by violating Sec 8(aX3) of the Act, Respondent also committed a violation of Sec. 8(aX 1) of the Act. described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. FilE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the poli- cies of the Act. Having also found that Respondent discriminator- ily discharged employee James Buscemi. we shall or- der Respondent to offer him immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed, and to make him whole for any loss of earnings he may have suffered due to the discrimination practiced against him 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 until the date of Respondent's offer of reinstatement, less his net interim earnings. plus inter- est, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 5 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Golden Age Chairmobile, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 200, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section II1, above, Re- spondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, em- ployees in the exercise of the rights guaranteed to them in Section 7 of the Act and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (I) 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- ' See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962). 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Board hereby orders that the Respondent, Golden Age Chairmobile, Inc., Rochester, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging and refusing to reinstate employ- ees because of union and other protected, concerted activities. (b) Discouraging membership in Service Employ- ees International Union, Local 200, AFL-CIO, or any other labor organization, by discriminatorily dis- charging employees and failing or refusing to rein- state them, or by otherwise discriminating in regard to hire or tenure of employment or any term or condi- tion of employment. (c) 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 is necessary to effectuate the policies of the Act: (a) Offer James Buscemi immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of his discharge by Respondent in the manner set forth above under the section 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 339 East Avenue, Rochester, New York, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms pro- vided by the Regional Director for Region 3, after 6 In the event that this Order is enforced by a Judgment ofa 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," being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPIOYEES POSTED BY ORDER O THFE NATIONAL LABOR REI.AIIONS BOARD An Agency of the United States Government WE WI. N discharge and refuse to reinstate employees because of union and other protected, concerted activities. WE Wll. Nor discourage membership in Ser- vice Employees International Union, Local 200, AFL CIO, or any other labor organization, by discriminatorily discharging employees and fail- ing or refusing to reinstate them, or by otherwise discriminating in regard to hire or tenure of em- ployment or any term or condition of employ- ment. WE WVII.I. NOI in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act. WE WI.. offer James Buscemi immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his se- niority or any other rights and privileges previ- ously enjoyed, and make him whole for any loss of earnings suffered by reason of the discrimina- tion against him, with interest. GOLDEN AGE CHAIRMOBII.E. INC. 162