Atlas Hospital Equipment Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlas Hospital Equipment Company, Inc. and/or Hos- pital Equipment Corporation and United Steelwork- ers of America, Local Union 7938, AFL-CIO-CLC. Case 6-CA- 11342 March 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on June 15. 1978, by United Steelworkers of America. Local Union 7938. AFL- CIO-CLC, herein called the Union, and duly served on Atlas Hospital Equipment Company, Inc., herein called Atlas, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 6, issued a complaint against Atlas alleging that Atlas had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hear- ing were served on the above-mentioned parties. On August 18, 1978, Atlas filed an answer, denying it committed the unfair labor practices referred to above. Thereafter, on November 20, 1978, the Union filed an amended charge and duly served it on Atlas and/or Hospital Equipment Corporation. On Decem- ber 8, 1978, the Regional Director for Region 6 issued an amended complaint against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Copies of the amended charge, amended complaint, and notice of hearing be- fore an Administrative Law Judge were served on the parties to this proceeding. With respect to the unfair labor practices, the amended complaint alleges in substance that Respon- dent! violated Section 8(a)(1) and (5) of the Act by repudiating an existing collective-bargaining agree- ment, by unilaterally abrogating benefits arising un- der that agreement, and by refusing to execute a suc- cessor collective-bargaining agreement previously agreed to by the parties. Although duly served, Re- spondent has not filed an answer to the amended complaint. On January 5, 1979, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment based upon Respondent's failure to file an answer to the amended complaint.2 Subse- The amended complaint alleges that Hospital Equipment Corporation "has been. and is now, an alter ego and/or a successor employer to Respon- dent Atlas." 2 The Motion for Summary Judgment, together with a copy of the com- plaint and exhibits, was served via certified mail on (I) Atlas Hospital Equip- quently. on January 22, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not 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 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 herein specifically state that unless an an- swer is filed within 10 days of service thereof "all of the allegations in the complaint shall be deemed to be admitted to be true and may be so found by the Board." Further, according to the uncontroverted al- legations of the Motion for Summary Judgment, counsel for the General Counsel, pursuant to Section 102.22 of the Board's Rules and Regulations, in- formed Respondent in a letter dated December 22, 1978, that unless an answer was filed by December 29, 1978, a Motion for Summary Judgment would be filed. Respondent Atlas Hospital Equipment Com- pany, Inc., and/or Hospital Equipment Corporation failed to file an answer to the complaint or to respond to the Notice To Show Cause. Therefore, the allega- tions of the Motion for Summary Judgment stand un- controverted. ment Company. Inc.. and/or Hospital Equipment Corporation, at the Wind- ber, Pennsylvania. facility; (2) Albert Zuccolotto, alleged to be general man- ager, vice president, and an agent of Atlas and Hospital; (3) Jules Shurkman; and (4) Morton Scherl alleged to be owner and an agent of Atlas and Hospital. 241 NLRB No. 92 496 ATLAS HOSPITAL EQUIPMENT COMPANY, INC. In view of the Respondent's failure to answer, and no other good cause having been shown therefor, the uncontroverted allegations of the complaint are deemed admitted and are found to be true. Accord- ingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Atlas, a corporation with its facility located at Windber, Pennsylvania, is engaged in the manufac- ture and nonretail sale of hospital equipment. During the 12-month period immediately preceding the issu- ance of the original complaint and notice of hearing, Atlas received goods and materials valued in excess of $50,000 directly from points outside the Common- wealth of Pennsylvania for use at its Windber, Penn- sylvania, facility. During the same period, Atlas shipped products and goods valued in excess of $50,000 from its Windber, Pennsylvania, facility di- rectly to points outside the Commonwealth of Penn- sylvania. Since July 26, 1978, Hospital Equipment Corporation, a Pennsylvania corporation, has been, and is now, the alter ego or successor employer of Atlas. We find, on the basis of the foregoing, that Respon- dent Atlas Hospital Equipment Company, Inc. and/ or Hospital Equipment Corporation has been at all times material herein an employer engaged in com- merce 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. 1I. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, Local Union 7938, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES At all times on or about December 16, 1971, and continuing to date, the Union has been the exclusive representative of employees employed at Respon- dent's Windber, Pennsylvania, facility in the follow- ing appropriate unit: All production and maintenance employees at [Respondent's] Windber, Pennsylvania, plant; excluding office clerical employees and guards, professional employees and supervisors as de- fined in the Act.3 Thereafter, Atlas has been party to successor collec- tive-bargaining agreements, one of which was entered into on March 20. 1978, and was to continue in effect for a minimum of 103 calendar days or a maximum of 195 calendar days. Respondent has failed and refused and continues to fail and refuse to bargain in good faith with the Union as the duly recognized exclusive bargaining representative of the employees in the above-de- scribed unit by the following acts and conduct: (1) On or about April 17, 1978, and at all times thereafter, Atlas unilaterally and without prior notice to, or con- sultation with, the Union canceled sick and accident and life insurance benefits and ceased making pay- ments of premiums for Blue Cross and Blue Shield, all of which benefits it was required to pay by the terms of the March 20, 1978, collective-bargaining agreement. (2) On or about May 9, 1978, Atlas by- passed the Union and dealt directly with employees by announcing to them its intention to repudiate the March 20, 1978, collective-bargaining agreement with respect to the payment of fringe benefits. (3) On or about May 17, 1978, and at all times thereafter, Atlas unilaterally and without prior notice to or consulta- tion with the Union repudiated the provisions of the March 28, 1978, collective-bargaining agreement re- garding the benefits described previously, the vaca- tion pay program, and the pension fund. (4) On June 26, 1978, the Union was notified by Atlas that hence- forth it was doing business under the name Hospital Equipment Corporation; thereafter, on or about Au- gust 28, 1978. and continuing to date, Hospital failed and refused to execute a written collective-bargaining agreement embodying the terms and conditions of employment previously agreed upon by Hospital and the Union on August 14, 1978. Accordingly, we find that, by engaging in the con- duct found above, Respondent did refuse to bargain collectively with the Union as the exclusive represent- ative of the employees in the appropriate unit and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section Ill, above, occurring in connection with its operations tOn December 16, 1971. a majority of the employees in the unit desig- nated and selected the Union as their representative for purposes of collec- tive bargaining with Respondent Atlas in a Board conducted election. On December 27, 1971, the Regional Director for Region 6 certified the Union as the collective-bargaining representative of the employees in the said unit. 497 I)E('ISIONS )F NATIONAL. LABOR RELATIONS BOARD described in section 1, above, have a close, intimate, andi substantial relationship to trade, traffic, and com- merce amlong the several States and tend to lead to labor diisputes burdening ad obstructing commerce and the free flow of commerce. v. 111. RIM IDY tlaving found that Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. To remedy Respondent's violation of Section 8(a)(5) and (1) of the Act, we shall order Respondent to make employees whole fr any losses they may have incurred as a result of Respondent's repudiation of' various provisions of the March 20, 1978, collec- tive-bargaining agreement, including payments em- ployees may have made to secure alternative insur- ance coverages, plus interest, or other losses they may have suffered as a result of Respondent's actions, plus interest. Interest shall be computed in the manner prescribed in lorida Seel Corporation. 231 NLRB 651 (1977). 4 Additionally, we shall order Respondent to ex- ecute, sign. and give effect to all the terms and condi- tions of the contract agreed to by the parties on Au- gust 14. 1978. If' the Union does not request such execution, we shall order that Respondent be ordered to bargain collectively in good faith, upon request, with the Union, as the exclusive collective-bargaining representative of' Respondent's employees in the above-described appropriate unit, and, if' an under- standing is reached, embody such understanding in a signed agreement. We shall further order that Respondent make whole the employees, in the unit found appropriate herein, for any loss of benefits they may have suffered from August 28, 1978, to the date of' its compliance with the Order herein, by reason of Respondent's fail- ure to give effect to the August 14, 1978, contract. All such moneys to be paid to such employees shall be comnputed in the manner prescribed in F W. Wool- worth ()panl'. 90 N.RB 289 (1950), with interest thereon to be computed in the manner prescribed in f'lorida Stel (orporationl, supra. 'Ihe Board, upon the basis of the foregoing facts and the entire record, makes the following: C()N(CI USIONS ()}' LAW 1. Atlas tlospital tEquipment Company. Inc., and/ or hospital Equipment Corporation constitute an I Sce generall , Is PIumh i, &R Ilerilg (. 138 NI RB 716 (1962). employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, Local Union 7938, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at the Windber, Pennsylvania, facility; excluding office clerical employees and guards, professional employees and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since December 16, 1971, the above-named la- bor organization has been and now is the exclusive representative of all employees in the aforesaid ap- propriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By canceling on or about April 17, 1978, unilat- erally and without prior notice to or consultation with the Union, sick and accident and life insurance bene- fits, and ceasing to make payments of premiums for Blue Cross and Blue Shield, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act, as amended. 6. By announcing to employees on or about May 9, 1978, its intention to repudiate the then existing collective-bargaining agreement with respect to the payment of' fringe benefits, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act, as amended. 7. By repudiating on or about May 17, 1978, and at all times thereafter, unilaterally and without prior notice to or consultation with the Union, the provi- sions of the then existing collective-bargaining agree- ment, described previously, with respect to vacation pay, the pension fund, and the previously mentioned benefits, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act, as amended. 8. By refusing on or about August 28, 1978, and at all times thereafter, to execute and implement provi- sions of the agreed-upon written agreement with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act, as amended. 9. By the aforesaid actions, Respondent has inter- fered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the exer- cise of the rights guaranteed them by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( 1 ) of' the Act. 10. The aforesaid are unfair labor practices affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 49X A'TLAS iHOSPITAL EQUIlPMENT (OMPANY, INC'. ORDER Pursuant to Section 10(c) of the National labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Atlas Hospital Equipment Company, Inc., and/or Hospital Equipment Corporation, Windber, Pennsylvania. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with United Steelworkers of America, Local Union 7938. AFL-CIO-CLC, as the exclusive bargaining representative of all its employ- ees in the following appropriate unit: All production and maintenance employees em- ployed by Respondent at the Windber, Pennsyl- vania, facility; excluding office clerical employ- ees and guards, professional employees and supervisors as defined in the Act. (b) Unilaterally instituting changes in wages. rates of pay, hours, or other terms and conditions of em- ployment of its employees in the above-described ap- propriate unit, or announcing its intention to do same, without first notifying and consulting with the Union. (c) Refusing to sign or execute, in writing, the writ- ten agreement reached with the Union or with any other collective-bargaining representative of its em- ployees. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as exclusive representative of all employees in the aforesaid appropriate unit by ex- ecuting forthwith the agreed-upon contract and by honoring and complying with the provisions thereof or, if the Union does not request such execution. bar- gain collectively in good faith, upon request, with the Union as the exclusive representative of the employ- ees in the unit found appropriate, and, if an under- standing is reached, embody such an understanding in a signed contract. (b) Make whole the employees in the unit found appropriate herein for any losses they may have sus- tained from April 17, 1978. to August 28, 1978, by reason of Respondent's cancellation of benefits aris- ing under the March 20, 1978, collective-bargaining agreement in the manner set forth in the section of' this Decision entitled "The Remedy." (c) Make whole the employees in the unit found appropriate herein for any losses they may have suf- fered from August 28, 1978, by reason of Respon- dent's failure to execute and give effect to the previ- ously agreed-upon contract. in the manner set forth in the section of' this Decision entitled "The Rermedax." (d) Preserve and. upon request, make availlable 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 hackpay due under the terms of this Order. (e) Post at its place of business at Windber Penn- sylvania, copies of the attached notice marked "Ap- pendix."' Copies of said notice, on forms provided hb the Regional Director for Region 6 after being dul signed by Respondent's representative. shall he posted by Respondent immediately upon receipt thereof, and be maintained b it for 60 consecutive days thereafter, in colnspicuou s places. including all places where notices to employees are customaril\ posted. Reasonable steps shall he taken b Respon- dent to insure that said notices are not altered. de- faced or covered bh any other materi:ll. (f) Notify the Regional irector tfor Region 6. in writing. within 20 da s from the date of this Order. what steps have been taken to comply herev ith. ' In the event that this Order is enforced h . jludrmn it .a I rited Stales Court f Appeals. the %:, rd, in the notlce reading "'INtedl h ()Order 1 the National I.abor Relations Boa.rd" shall read "Posted PItr.Licnt 1t .i ludreint ,f' the United States ('iartl . Appe:als nlitr tirF. in O)rier the \.t onal l.abor Relatllons Board.' APPEtI)IX No nI(I To E '1 ()YtLiES POSrI t) B ORDER ()I 1111 NA IONAI. LAB()R RHi.AII()NS BOARI) An Agency of the United States Government The National Labor Relations Act gives all em- ployees the right: To engage in self-organization To form, join. or assist an\ union To bargain collectively through representa- tives of their own choice To engage in activities together tbr the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of an' or all such activities. WE WI.l. NOI refuse to bargain collectively with United Steelworkers of America. ocal Union 7938, AFL-CIO ('LC. as the exclusive bargaining representative of all our employees in the following bargaininlg unit: All production and maintenance employees employed b Respondent at the Windber. 499 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania, facility: excluding office clerical employees and guards, professional employees and supervisors as defined in the Act. WE WILL NOTr unilaterally institute changes in wages, rates of pay, hours, fringe benefits, or other terms and conditions of employment, nor will we announce our intention to do so, without first notifying and bargaining with the Union. WE WILL, NOT refuse to sign or execute, in writ- ing, collective-bargaining agreements reached with the Union or with any other collective-bar- gaining representative. 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 make whole our employees in the appropriate unit for any losses they may have sustained by reason of our unlawful cancellation of benefits arising under the collective-bargain- ing agreement which was executed on March 20, 1978. WE WILL, upon request of the Union, execute and give retroactive effect to the collective-bar- gaining contract on which agreement was reached August 14, 1978, or, if the Union does not request such execution, WE WILL bargain col- lectively in good faith, upon request, with the Union with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in an agreement any understanding reached. WE WILL reimburse our employees for any loss of benefits they may have suffered because we failed to sign, execute, and give effect to such a contract on August 28, 1978, with interest. ATLAS HOSPITAL EQUIPMENT COMPANY, INC. AND/OR HOSPITAL EQUIPMENT CORPO- RATION 500