Concerned Women's Clinic, Inc.

CONCERNED WOMEN'S CLINIC, INC. 681 Concerned Women's Clinic, Inc. and Service, Hospi- tal, Nursing Home and Public Employees Union, Local #47, affiliated with Service Employees International Union, AFL-CIO. Case 8-CA-10220 December 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a charge filed on June 17, 1976, by Service, Hospital, Nursing Home and Public Employees Union, Local # 47, affiliated with Service Employees International Union, AFL-CIO, herein called the Union, and duly served on Concerned Women's Clinic, Inc., herein called the Respondent, the Gener- al Counsel of the-National Labor Relations Board, by the Regional Director for Region 8, issued a com- plaint and notice of hearing on July 27, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of A he charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. Respondent failed to file an answer to the complaint. On September 30, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 8, 1976, 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 Notice To Show Cause and therefore the allegations in the Motion for Summary Judgment stand uncontroverted. 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 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 complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such 227 NLRB No. 113 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 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 the Respondent herein specifically states that unless an answer to the complaint is filed within 10 days of service thereof "all of the allegations in the Com- plaint shall be deemed to be admitted to be true and may be so found by the Board." Further, according to the uncontroverted allegations of the Motion for Summary Judgment, Respondent and its attorney were advised by registered letter dated August 30, 1976, and by letter dated September 7, 1976, respec- tively, that it had failed to file an answer and that summary judgment would be sought herein unless an answer to the complaint was filed by September 8 and 14, 1976, respectively. As noted above, Respondent has failed to file an answer to the complaint and has failed to file a response to the Notice To Show Cause. Accordingly, under the rule set forth above, no good cause having been shown for the failure to file a timely answer, the allegations of the complaint are deemed admitted and are found to be true, and we shall grant the General Counsel's Motion for Summa- ry Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, an Ohio corporation with its princi- pal office-and place of business located in Cleveland, Ohio, where it is engaged in the operation of a family planning clinic. Annually, in the course and conduct of its business operation, Respondent receives gross revenues in excess of $250,000, and purchases and receives at its Cleveland, Ohio, facility goods valued in excess of $2,000 directly from points located outside the State of Ohio. ' 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 it will effectuate the policies of the Act to assert jurisdiction herein. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Service, Hospital, Nursing Home and Public Em- ployees Union, Local #47, affiliated with Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the-Act. III. THE IJr FAIR L'AB t6R PRACTICES A. The Independent 8(a)(1) Violations Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed by Section 7 of the Act by engaging in the following acts and conduct: 1: On or about April 30, 1976, Respondent, through its agent and, supervisor, L. T. Brinkley, did promise an employee, during a telephone conversa- tion with the employee at Respondent's facility, that the employee would be granted a leave of absence if the employee agreed to vote against the Union in a representation election in Case 8-RC-10351, which was scheduled to be conducted on May 3, 1976. 2. On -or about April 30, 1976, Respondent, through its agent and supervisor, L. T. Brinkley, did unlawfully interrogate an employee, during a tele- phone conversation with the employee at Respon- dent's facility, with respect to the union activities, sympathies, membership, and/or other protected concerted activities of one of Respondent's employ- ees. 3. On or about May 17, 1976, Respondent, through its agent and supervisor, L. T. Brinkley, did unlawfully inform an employee, during ,a telephone conversation with the employee at Respondent's facility, that Respondent's employees would no longer be granted any benefits, since the employees had voted in favor of the Union in the May 3, 1976, representation election in Case 8-RC-1035 1. 4. On or about May 17, 1976, Respondent, through its agent and supervisor, L. T. Brinkley, did unlawfully interrogate an employee, during a tele- phone conversation with the -employee at Respon- dent's facility, with respect to' the union activities, sympathies, membership, and/or other protected activities of said'employee. 5. On or about May 17, 1976, Respondent, through its agent and supervisor, 'L. T. Brinkley, did impliedly promise an employee, during a telephone conversation with the employee at Respondent's facility, that said employee would likely be granted a leave of absence if the employee would support Respondent in the event that the Union engaged in a strike against Respondent. Accordingly, we- fmd that by the aforesaid conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and by such conduct Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. B. The 8(a)(3) and (1) Violations On or about May 17, 1976, Respondent did deny employee Kokila Patel a previously granted leave of absence which was to have commenced on or about July 9, 1976, and extended to on or about August 23, 1976, by informing her that if she took the leave of absence she would be replaced and would only be reinstated to her former position if an opening existed on or about August 23, 1976. On or about July 9, 1976, employee Kokila Patel having commenced her leave of absence, Respondent did replace Patel with another employee, thereby discharging and terminat- ing the employment of Patel. Respondent did deny Patel a previously granted leave of absence; did inform her that if she took the leave of absence she would be replaced, and did replace Patel, thereby discharging, and terminating the employment -of, Patel, for the reason that Patel had, or Respondent believed she had, joined, assisted, favored, or become a member of the Union, and/or because she had engaged in other protected concerted activity for the purpose of collective bargaining or other mutual aid or protection. Accordingly, we fmd that, by the aforesaid con- duct, Respondent -discriminated in regard to the terms and conditions of employment of its employ- ees, thereby discouraging membership in a labor organization, and that by such conduct Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) 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 opera- tions 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 commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices 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. CONCERNED WOMEN'S CLINIC, INC. Having found that the unfair labor practices committed by Respondent were of a character which goes to the heart of the Act, we shall also order Respondent to cease and desist from-infringing in any other -manner- upon the, rights of employees guaran- teed by Section 7 of the Act. We have found that Respondent discriminatorily discharged employee Kokila Patel, and we shall order that she be offered immediate and full reinstatement to her former or substantially equivalent position, without prejudice to, her seniority or other rights and privileges. We shall also order that Respondent make employee.- Kokila Patel whole for any loss of pay suffered because of the discrimination against her. Backpay shall be based upon the loss of earnings suffered from the date of the discriminatory discharge to the date of Respondent's offer of reinstatement. The backpay shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum,_ as provided in 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. Concerned Women's Clinic, Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service, Hospital, Nursing Home and Public Employees Union, Local #47, affiliated with Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III, A, above, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By the acts described in section III, B, above, Respondent has discriminated in regard to the hire and tenure of employment of employees, thereby discouraging membership in or activities on behalf of a labor organization, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. 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 683 Pursuant to Section 10(c) of-the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Concerned Women's Clinic, Inc., Cleveland, Ohio; its officers, agents, successors, and assigns, shall: 1. - Cease and desist from: (a) Promising employees that they would be grant- ed leaves of absence ifthey agreed-to vote against the Union in a Board representation election. (b) Interrogating employees with respect to their or other employees' union activities, sympathies, mem- bership, and/or other protected concerted activities. (c) Informing employees-that= they would no longer be granted any benefits since they voted in favor of the Union in a representation election. (d) Impliedly promising employees that'they would likely be granted leaves of absence if they would support Respondent in the event that the Union engaged in a strike against Respondent. (e) Discouraging membership in Service, Hospital, Nursing Home and Public Employees Union, Local #47, affiliated with Service Employees International Union, AFL-CIO, or any other labor organization, by denying employees previously granted leaves of absence, and replacing them because they take such leaves of absence, thereby discharging them and terminating their employment because they have, or Respondent believes they have, joined, assisted, favored, or become members of the above-named Union, or any' other, labor organization, and/or because they engage in other protected concerted activity for the purpose of collective bargaining or other mutual aid or protection. (f) In any, other manner interfering with, restrain- ing, orcoercing 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 to reinstate Kokila Patel to her former job or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges. (b) Make whole employee Kokila Patel for losses she may have suffered by reason of the discrimination against her as set forth in the section of this Decision entitled "The Remedy." (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 other records necessary to analyze the amount of backpay due under the terms of this Order. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its Cleveland, Ohio, facility copies of the attached notice marked "Appendix." 1 Copies of said notice, on- forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent imme- diately 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 materi- al. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. i In the event that this Ordeals 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 WE WILL NOT promise employees that they will be granted leaves of absence if they agree to vote against the Union in a Board representation election. WE WILL NOT interrogate employees with re- spect to their or other employees' union activities, sympathies, membership, and/or other protected concerted activities. WE WILL NOT inform employees that they will no longer be granted any benefits since they voted in favor of the Union in a representation election. WE WILL NOT impliedly promise employees that they will likely be granted leaves of absence if they would support us in the event that the Union engaged in a strike. WE WILL NOT discourage membership in Ser- vice, Hospital, Nursing Home and Public Em- ployees Union, Local #47, affiliated with Service Employees International Union,, AFL-CIO, or any other labor organization, by denying employ- ees previously granted leaves of absence, and replacing them because they take such leaves of absence, thereby discharging them and terminat- ing their employment, because they have, or we believe they have, joined, assisted, favored, or become members of the above-named Union, or any other labor organization, and/or because they engage in other protected concerted activity for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer to reinstate Kokila Patel to her former job or, if such position no longer exists, to a substantially equivalent position, without preju- dice to her seniority or other rights and privileges. WE WILL make whole employee Kokila Patel for losses she may have suffered by reason of the discrimination against her, with interest at the rate of 6 percent per annum. CONCERNED WOMEN'S CLINIC, INC.