Dr. Shen's

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dr. Shen's and Robert Reden. Case 13-CA-19644 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MlMBERS JENKINS AND PENI.LO Upon a charge filed on March 4, 1980, by Robert Reden, an individual, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 13, issued a complaint on April 1, 1980, against Dr. Shen's, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(1) and (4) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. Respond- ent, however, failed to file an answer to the com- plaint. On August 18, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Respondent did not file a re- sponse thereto. 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: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. 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 allegation 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 admitted 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 Respondent herein specifically states that unless an answer to the complaint is filed within 10 days of the service thereof "all of the allegations in the complaint shall be deemed to be admitted to be 252 NLRB No. 115 true and may be so found by the Board." Further, according to the uncontroverted allegations in the Motion for Summary Judgment, on July 16, 1980, Respondent was advised by telephone and a con- firming telegram that unless an answer was filed by July 28, 1980, the General Counsel would file a Motion for Summary Judgment. In a letter dated July 17, 1980, Respondent indicated that it could not locate a copy of the complaint and requested that the General Counsel foward another copy of the complaint. On July 18, 1980, General Counsel forwarded a copy of the complaint and a copy of the returned receipt indicating that Respondent had been served with the complaint on April 2, 1980. Respondent did not file an answer and, as indicated earlier, Respondent did not file a response to the Notice To Show Cause. Accordingly, under the rules 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 grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. TH BUSINFSS OF RESPONDENT Respondent, an Illinois corporation, has main- tained a place of business at 1050 North State Street, Chicago, Illinois, herein called Respondent's facility, where it has been engaged in the operation of a public restaurant selling food and beverages. During the past calendar year, a representative period in the course and conduct of its business op- erations described above, Respondent derived gross revenues in excess of $500,000. In addition, during the past calendar year in the course and conduct of its business operations described above, Respondent purchased and received at its Chicago, Illinois, fa- cility goods in excess of $5,000 from other enter- prises located within the State of Illinois which other enterprises had received said goods valued in excess of $5,000 directly from points outside the State of Illinois. We find, on the basis of foregoing, that Respond- ent is, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert ju- risdiction herein. II. THE UNFAIR LABOR PRACTICES At all times material herein, the following indi- viduals occupy the positions set forth after their re- spective names and are now, and have been at all 788 DR. SHEN'S times material herein, supervisors of Respondent within the meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Sec- tion 2(13) of the Act: Phil Shen, stockholder/ owner; Hain Benezra, manager. On or about March 3, 1980, Respondent, by its supervisors and/or agents, Phil Shen and Hain Benezra, discharged its employees Robert Reden because he engaged in protected concerted activi- ties, including, but not limited to, seeking the pay- ment of outstanding wages due him and other em- ployees. In addition, Respondent discharged Reden because Reden had indicated that he would file charges against Respondent with the Board or give testimony under the Act. By the acts and conduct described above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (4) and Section 2(6) and (7) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. IV. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (4) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectu- ate the policies of the Act. We have found that Re- spondent discharged employee Robert Reden be- cause he engaged in protected concerted activities and threatened to file charges against Respondent with the Board or give testimony under the Act. Accordingly, we shall order that Respondent offer Robert Reden immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges 'previously enjoyed, and that he be made whole for any loss of pay suffered because of his unlawful discharge. The backpay shall be com- puted in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed as provided in Florida Steel Corporation, 231 NLRB 651 (1977).' (See, general- ly, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). i Member Jenkins ould compute interest in the manner set forth in his partial dissent in Olrnmpi c .IIedeacl (Corporartlon 25() N.RH 146 (1980) The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF I.AW 1. Respondent Dr. Shen's is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging employee Robert Reden be- cause he engaged in the protected concerted activi- ties of seeking the payment of outstanding wages due him and other employees and because he indi- cated that he would file charges against Respond- ent with the Board or give testimony under the Act, Respondent violated Section 8(a)(l) and (4) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting 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 Re- lations Board hereby orders that the Respondent, Dr. Shen's, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against Robert Reden or any other employee be- cause such employee sought the payment of out- standing wages due him and other employees or engaged in other protected concerted activity for the purpose of mutual aid or protection. (b) Discharging or otherwise discriminating against Robert Reden or any other employee be- cause such employee indicated that he would file charges against Respondent with the Board or give testimony under the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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) Offer Robert Reden immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights or privileges previ- ously enjoyed, and make him whole, with interest, for any loss of earnings that he may have suffered as a result of the termination of his employment. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the 789 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount of backpay due under the terms of this Order. (c) Post at its Chicago, Illinois, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's authorized 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) 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 herewith. 2 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 Pursu- ant 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice, and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or assist unions To bargain collectively through repre- sentatives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT discharge or otherwise dis- criminate against Robert Reden or any other employee because such employee has sought the payment of outstanding wages due him and other employees or because such employ- ee engaged in other protected concerted activ- ity for the purpose of mutual aid or protection. WE WILL NOT discharge Robert Reden or any other employee because such employee has indicated that he would file charges against Respondent with the Board and/or give testimony under the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Robert Reden immediate and full reinstatement to his former job or, if his job is no longer available, to a substantially equivalent job, without prejudice to his senior- ity and other rights and privileges previously enjoyed, and WE WILL make him whole for any loss of earnings that he may have suffered as a result of our discrimination against him, together with interest. DR. SHEN'S 790