Nickey Chevrolet Sales, Inc.

NICKEY CHEVROLET SALES, INC. 411 Nickey Chevrolet Sales, Inc. and Jimmy L. Strozier. Cases 13-CA-11220 and 13-CA-11389 September 29, 1972 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO Upon charges filed on February 2, 1972, and April 4, 1972, by Jimmy L. Strozier, an individual, herein called the Charging Party, and duly served on Nickey Chevrolet Sales, Inc., herein called the Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a consolidated complaint on May 17, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in an unfair labor prac- tice affecting commerce within the meaning of Sec- tion 8(a)(4) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practice, the con- solidated complaint alleges, in substance, that Re- spondent violated Section 8(a)(4) and (1) of the Act by discharging employee Jimmy L. Strozier, the Charging Party, because he filed unfair labor practice charges against it with the Board. On June 5, 1972, the Respondent filed an answer to the consolidated com- plaint admitting in part, and denying in part, the alle- gations in the complaint. By letter dated June 19, 1972, Respondent withdrew its answer and agreed to the issuance of a Board Order in this matter. On June 23, 1972, the General Counsel filed with the Chief Trial Examiner, a Motion for Judgment on the Pleadings, herein called Motion for Summary Judgment, and on June 26, 1972, the Acting Chief Trial Examiner referred the motion to the Board for ruling. Subsequently, on July 10, 1972, the Board is- sued 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 thereafter failed to file a re- sponse 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, Series 8, as amended, provides as follows: 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 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 allega- tion in the complaint not specifically denied or explained in an answer filed, unless the respon- dent 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 consolidated complaint served on the Re- spondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof, "all allegations in the complaint ... shall be deemed to be admitted to be true and may be so found by the Board." Although the Respondent time- ly filed an answer, by letter dated June 19, 1972, it subsequently withdrew its answer "with a view to a formal settlement (by Board order)," thereby ac- quiescing in the issuance of a Board Order herein. The withdrawal of an answer of necessity has the same effect as a failure to file, and thus the allegations of the complaint must be deemed admitted as true as if no answer had ever been filed.' No good cause to the contrary having been shown, in accordance with the rule set forth above, the allegations in the consolidat- ed complaint against the Respondent are deemed ad- mitted and are found to be true 2 We shall, accordingly, grant the Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, an Illinois corporation, maintains its principal office and place of business in Chicago, Illinois, where it is now, and has been at all times material herein, engaged in the retail sale, distribu- tion, and servicing of new and used automobiles, trucks, and related products. During the past calendar or fiscal year, a representative period, Respondent, in the course and conduct of its business operations, sold and distributed automobiles, trucks, and related prod- ucts having a gross value in excess of $500,000 and received goods and materials valued in excess of. $100,000 directly from States other than Illinois. ' Cyntell Tool Company, 196 NLRB No 150, and cases cited therein 2 Wilson & Sons, 193 NLRB No 51, and cases cited therein. 199 NLRB No. 71 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, on the basis of the foregoing, that Re- spondent 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 juris- diction herein. II THE UNFAIR LABOR PRACTICE On or about March 3, 1972, Respondent dis- charged employee Jimmy L. Strozier because he filed unfair labor practice charges against it with the Board. Accordingly, we find that Respondent, by the conduct described above, discharged or otherwise dis- criminated against an employee because he had given testimony under the Act and that by such conduct Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(4) and (1) of the Act. III. 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 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. IV THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(a)(4) 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. Having found that Respondent's discharge of Jimmy L. Strozier violated the Act, we shall order that Respondent offer to Strozier 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 other rights and privi- leges, and make him whole for any loss of earnings he may have suffered by reason of his discharge by pay- ment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon computed in the manner prescribed in F. W. Woolworth Compa- ny, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Nickey Chevrolet Sales, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Jimmy L. Strozier because he filed charges with the Board, all as hereinabove found, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(4) and (1) of the Act. 3. The aforesaid is an unfair labor practice affect- ing commerce 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 Rela- tions Board hereby orders that the Respondent, Nick- ey Chevrolet Sales, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or refusing to reinstate employ- ees because they have filed charges under the Act. (b) 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 the Board finds will effectuate the policies of the Act: (a) Offer Jimmy L. Strozier immediate and full reinstatement to his former position or, if that posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the section above entitled "The Remedy." (b) Notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (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 oth- er records relevant and necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Chicago, Illinois, place of business copies of the attached notice marked "Appendix."3 3 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." NICKEY CHEVROLET SALES, INC. 413 Copies of said notice , on forms provided by the Re- gional Director for Region 13, after being duly signed by Respondent's representative, shall be posted 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) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or refuse to reinstate any employee because he has filed a charge un- der the National Labor Relations Act, as amended. 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 offer Jimmy L. Strozier immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or oth- er rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him. NICKEY CHEVROLET SALES, lIC. (Employer) Dated By (Representative) (Title) We will notify immediately the above -named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room 881 , 219 South Dearborn Street, Chicago, Illi- nois 60604, Telephone 312-353-7572.