Travelodge San Francisco Civic Center

I R\\ IL(I)(I SAN RAN(ISC() (IVI( (I N IR .lae K. Ice ad )ang I. Son a partnership /h/a Travelodge San Francisco (iic ('enter ad Stecn L. Smith. (ase 20 (A 14223 Ma\ 16. 1979 DI)('ISION ANI) ()ORDER BY M1IAIBIRS PI1N IM, tRI'IY. .) IRt I Sl) I ['pon a charge iled on Novermber 24, 1978. h\ Ste- ven I.. Smith. an indi idual, herein called the (ar_- inc Partm. and duly servedl on .Jae K. l.ee and )ane H-. Song, a Partnership d bIa iravelodge San ran- cisco ('ivic ('enter. herein called Respondent. the General Counsel of the National .Labor Relatios Board h the Regional Director tOr Region 20, issued a complaint and notice of' hearing on .Ianuar 15. 1979. against Respondent. alleging that Respontdent had engaged in and as enaging in unfir lahor practices affectiing corn mmerce within tile ienanc ot Section 8(a)(3) and (1) and Section 26} and (7) of the National .ahor Relations Act. as aniended. (Copies of the charge. complaint, and notice oft hearing bef'ore an administrative law . udge weir dul sered on the parties to this proceeding. With respect to the unf'air labor practices. the com- plaint alleges, in substance, that on or about No\fiel- her 10. 1978. Respondent. h its owncr manager. Jlace K. Lee. discharged Smith because of Iiis nembcrship in or activities on behal f of otel and Restaurant Emploxees and Bartenders nion. ocal 2. or be- cause he engaged in other protected concerted a'- tivitv. Respondent I'lailed to file n answer to the coin- plaint b\ the time prescribed therein. Thereafter, according to te uncontroverted dociu- ments submitted with her instant Motion for Sum- mary Jdgment, counsel for the (ieneral (ounsel wrote to Respondent on ebruar 7 1979. stating that an answer to the complaint had not et been received. although it was due , J.anuar .25, 1979. 'he eneral Cou nsel then extendcd te tinlie for il ig the answer to hebruar\ 16. 1979. ()n ebruar 8. 1979. Respondent sent a letter to counsel for the ell- eral ounsel in wIhichl it generalI denied tile clim mis- sion of unfair labor practices and tated its reasons fokr the discharge of te commission of unfair labor practices and stalted its reisons for te di,,charg c re l' the Charging Part. I tow\eer. counsel for (ieer.li ('Counsel determined that the letter did not COnll'rl with the Board's Rules concerning the alequacl ot ani answer. Further, there was no indication that i con- formance with the Board's Rules. the (ChargLing Part. had been ser.cd ,ith a cop\ of' the allS\ .. I hereOre. on Februark 13. 1979. counsel fr the (leneral ('onn- sel rote to Respondent explatining the equillrnements of a leCgall sulicint ans\ er. stlting that the ICletter of, IlebruarN 8. 1979 did not meet thllese i'equlircllments indl aigaiii c\tendilg tile ime for fil ng an answlcr to [:ebruar 2. 1979. No further comniunicitiIIon was received from Respondent. ()II l:ebrutr\ 20, 1979. cou nsel for tlhe ( i;enral (Counsel iled directl\ with the Board a /Motohn Ir Suiiniar\ ludguenlt w,it ehibits ttached. Suhse- qucntl\. n larch . 1979, the Board issued an ()rder tri lte-,rrlig the ploceedin tllo tile Boaid a;tlld Notice [0 S10 Cse \\ lk the (eneral ('OUlnSel's Motioll lo SnlMar\ JxIlgment should not e granted. Re- SpOnldenlt did not tile .i response to the Notice o Show ('anse, so the allegations of the Motioll for SIn nitar' Ju.1dgmneII stalnd uncontrocrtecd. Pursuant to the prokisions of Section 3) of the National Lator Relations Act, s amended, the Na- tional Ihabor Relations Board has delegatted it, a- thllorit' in his proceedir t a three-lmeniber patnel. pon te etire ecord ill this proceeding. the Board makes the tolhlowing: Ruling on tile Motlon for SLmnlItr \ .udgnlent Sction 12.2) of the Board's Rule, ald Regula- tions. Series . s amended, provides s follo,,s: I lie respondent shall. \ithin It) da s romni tlhe ,,er-\ ice of the complaint, ile an as\,er thereto, . I lie respondent shalll speciticall adniit. de , . or c\plaii each o tile facts alleged n the corm- plaiint. tlIs the rCSpToident IS \thout kno\'l- edlge. in \ iich case the respondent shall so state. such iteincilt opcrating ll s denial. All allega- tols, I tle comllLlint. i no aiis'\c is filed, i an, allegation i the complaint not specificallk deiied or c\plailed ill an answr tile]. unless the respondent shall state i the answcr that ie Is itlouLlt knole\]dgc, shall be deemed to e admit- teL to e true nd shall he so lound h the Board. unless good cause to ile colitrlr' is sho% II. lhe complaint ad notice of' hearing issued on .hlauar, 15s., 979, and wereC dul[ sed oIn Respon- deti. lec complaint speciticallk statedl tlhat unless an ans\\er to the corniaint is iled h\ Respondent ithin It) dal;s ,of er\ice thereof all the allegations in tlhe complaint "shill he deened to he admlitted t be true aind m N\ be SO IfL d b\ the Board." .A's noted a boe. on :chbruar\ 7. 1979. counsel for the (Ceneral (A'ounse adii,,cd Resp,ondent thit an ans\wer had not been re- cei'.ed but etended thie te I'or tiliig :in 111\ er. \Vhile Respondent then iled its letter dated L;ebruar'\ 8. 979. is Its pulported ans\er. counsel tor the (en- eral (ounsel tlhcreater wrote to Respondent. indicat- 242 N.RB No. 5s DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that the letter was not a legally sufficient answer but again extended the time for filing a legally ade- quate answer. No answer was thereafter filed by Re- spondent. The General Counsel concluded that Respondent did not file a legally adequate answer to the com- plaint. Although Respondent, in its letter of February 8, 1979, generally denied that Charging Party Smith was discharged for unlawful reasons and stated that he was discharged for leaving his duty station without permission, the letter was rejected on the ground that this answer did not conform with Section 102.20 quoted above. As stated above, there is also no evi- dence that the Charging Party was served with a copy of this purported answer. Counsel for the General Counsel, in her letter to Respondent of February 13, 1979, brought these matters to Respondent's atten- tion and outlined the requirements of a legally suffi- cient answer, supplying a copy of the Board's Rules regarding the filing of such an answer. Respondent thereafter failed to comply with these requirements, even though the time period for such compliance was again extended. As noted, Respondent has not filed a response to the Notice To Show Cause. It is clear that when an answer to an unfair labor practice complaint is not filed in compliance with the Board's Rules judgment may be rendered on the basis of the complaint alone.' Therefore, no good cause to the contrary having been shown and in accordance with the rule set forth above, the allegations of the complaint are deemed to be admitted and are found to be true. Accordingly, 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 RESPONDENT Respondent is, and has been at all times material herein, a partnership of Jae K. Lee and Dang H. Song engaged in the operation of a motel and restau- rant facility in San Francisco, California. During the period from May 26. 1978, when Respondent began operations, to December 13, 1978, Respondent. in the course and conduct of its business operations, re- ceived gross revenues of $420,000 and purchased and received goods, materials, and supplies valued in ex- cess of $5,000 which originated from sources located outside the State of California. In asserting jurisdiction over hotels and motels, the Board normally applies a standard of $500,000 of gross annual revenues.2 While Respondent had re- I Neal B. Scottrr Commodities, Inc., 238 NLRB 32 (1978). 2 Penn-Keysrone Realty Corp, 191 NLRB 800 (1971). ceived only $420,000 in gross revenues from the time it began operations on May 26, 1978. until December 13, 1978, it is clear that Respondent's gross annual revenues may reasonably be expected to exceed $500,000. As it has long been Board policy to project annual revenues of new businesses' and since it is clear that Respondent may reasonably be expected to meet the Board's jurisdictional standards for hotels and motels, we find 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. II. TIlE .A(BOR OR;ANIZ.AION INO().VI) Hotel and Restaurant Employees and Bartenders Union, Local 2, is a labor organization within the meaning of Section 2(5) of the Act. III. THE (CHARGING PARTY Steven L. Smith is an employee within the meaning of Section 2(3) of the Act. IV. TlE UNFAIR I.ABOR PRACII(ES On or about November 10, 1978, Respondent, by Jae K. Lee. its owner/manager, and an agent of Re- spondent, discharged Steven L. Smith because of his membership in or activities on behalf of the Union, or because he engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Accordingly, we find that by the aforesaid conduct Respondent discriminated in regard to the terms and conditions of' employment of its employees thereby discouraging membership in a labor organization, and that by the aforesaid conduct Respondent en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. V. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section IV, 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. 'General Sea, and BacA Mfg. Corp, 93 NLRB 1511 (1951). 288 TRAV1tIO)(iF SAN FRAN CIS('O CIVIC (TINTER Having found that Respondent has engaged in and is engaging in unfair labor practices w ithin the mean- ing of Section 8(a)(3) and (I) of the Act. we shall order that it cease and desist therefrom. and that it take certain affirmative action, set forth below. which is designed to effectuate the purposes and policies of the Act. Having found that Respondent violated Section 8(a)(3) and (I) of the Act, b discriminatoril dis- charging Steven . Smith. we shall order Responldent to offer him immediate and full reinstatement to his former position or, if such position no longer exists. to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previ- ously enjoyed, and make him whole for any loss of earnings he may have suffered by paNy met to him of sums equal to the amount he normally would have earned as wages from the date of the discriminatorx discharge to the date of Respondent's offer of rein- statement, less net earnings, in accordance with the formula set forth in F. Wt. Wt'owortl Com/panv, 91 NLRB 289 (1950), with interest as prescribed in Flor- ida Steel Corporation. 231 NL.RB 651 (1977).4 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCI. SIONS OrI I.LAx I. Respondent, Jae K. IFee and Dang H. Song. a partnership d/b/a Travelodge San Francisco Civic Center, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel and Restaurant Employees and Bartend- ers Union. Local 2. is a labor organization within the meaning of Section 2(5) of the Act. 3. Steven L. Smith is an emploee withiln the meaning of Section 2(3) of the Act. 4. By the acts described in section IV. above. Re- spondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act and has discriminated in regard to their hire or tenure of employment thereby discouraging membership in a labor organization. and thereby has engaged in and is engaging 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. See, generally. Iris Plmbrhilng & Heoating ( 138 NLRB 7 16 (11962) Pursuant to Section 10(c) of' the National I.abor Relations Act, as amended. the National Labor Rela- tions Board htereby orders that the Respondent. Jae K. I.ee and Dang H. Song. a Partnership d/h/a Trav- elodge San Francisco C ivic ('enter. San Francisco. California, its officers. agents, successors, and assigns. shall: I. (Cease and desist from: (a) Discouragirng membership in IHotel and Res- taurant Emplo ees and Bartenders Union. Local 2, by discriminatorily discharging or otherwise discrimi- nating against employees in regard to their hire or tenure of employment or an'\ term and condition of emplo\ mient because they engage in union or other protected concerted activities. (h) In ann like or related manner interfering with. restraining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirma tive action which the Board finds will effectuate the policies of the Act: (a) Offer Steven L.. Smith immediate and full rein- statement to his former job or. if' ttil position no longer exists. to ai substantiallI equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed ad make him whole for an! loss of earnings in the maliner set forth in the section herein entitled "The Renied." (b) Preserve and. upon request. make available to the Board or its agents tfor examiinati ion and copying. all pa\roll records. social security payment records, timecards. personnel records and reports, and all other records necessarN to analyze the amount of backpal due under the terms of this Order. (c) Post at its San Francisco. California. place of business copies of the attached notice mnarked "Ap- pendix." 5Copies of said notice. on forms provided b5 the Regional Director for Region 20. after being dulx signed bh Respondent's representative. shall be posted by Respondent imediatel upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places. including all places here notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to instisure that said notices are not altered. de- faced. or co ered b any other material. (d) Notil\ the Regional Director for Region 20. in writing, within 20 daxs fromn the date of this Order. what steps Respondent has taken to complN herewith. ! In the eent that this Order is entorced h a dgment iofa L nted Stales coulrl if appeals. the irds tllhe nince reading "Posted h\ order of he National Labor Rcltiolns Boalrd" hall reaid "Posted Pursuant toa . Judgmenl ot' the L nited Slates (o urt Ail ppe.lls [-ltlorcing an Order ot he Nationll Lahbor Relainst Board." V. 1il Ri.ILI)Y ORDER I)l-( ISIONS O()I NA I ION . I.AB()R RtI. I IONS BOARI) A\ PIq' N I)IX Noti1( t I () !MII () il:S P()SII) tBY ()RI)IR (I 111F N ,\l()NAI [.AO()R RII AII oNs B()XRI) Aln Agency of the lnited States Governllent WI \'11i1. No1 discourage membership ill Hotel and Restaurant F.mployecs and Bartenders ULnion. ocal 2. or any other labor organization. h\ discriminatorily discharging. or otherwise dis- crimlinating against employees in regard to their hire or tenure of employ ment or an) term or condition of' employment. Wi 'I 111 NI ill any like or related manner interferie with. restraili, or coerce our employees in the exercise ol' the rights guaranteed them b) Section 7 of' the Act. Wi \i [ offer Steven L. Smith immediate and Iutill reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position. without prejudice to his se- nioritv or other rights and privileges previously enjoed, and vi : 1lt i make him whole for any loss of pa sufi'ered as a result of being discrimi- natoril discharged. with interest. JA: K. 1.+1 ANI) DN(; H. SoN;. A PARI- NERSIIP I)/B/A TRAVELODGE SAN FRAN- ( IS(O CIVIC CEN]ER 29()