Atlas Hospital Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1979

241 N.L.R.B. 496 (N.L.R.B. 1979)

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