Biomedical Services, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 742 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742
Biomedical Services, Inc. and Harold Crawford. Case
13–CA–39344
November 22, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The General Counsel seeks summary judgment in this
case because the Respondent has withdrawn its answer to
the complaint, effectively failing to answer the com-
plaint’s allegations, which therefore must be considered
to be true. Upon a charge filed by Harold Crawford on
May 8, 2001, the General Counsel issued the complaint
on September 5, 2001, against Biomedical Services, Inc.,
the Respondent, alleging that it has violated Section
8(a)(1) of the Act. The Respondent filed an answer to
the complaint on about September 20, 2001. On January
7, 2002, however, the Respondent withdrew its answer,
stating that “Biomedical Services, Inc. is not contesting
the allegations of the commission of any unfair labor
practice charges as alleged by the charging party.”
On January 31, 2002, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On Febru-
ary 5, 2002, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted.
Although the Respondent filed an answer to the com-
plaint, the Respondent advised the counsel for the Gen-
eral Counsel on January 7, 2002, that it was withdrawing
its answer. The withdrawal of an answer has the same
effect as a failure to file an answer, i.e., therefore the
allegations in the complaint must be considered to be
admitted to be true.1
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following

1 See Maislin Transport, 274 NLRB 529 (1985).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Indiana cor-
poration with an office and place of business in Merrill-
ville, Indiana, has been engaging in the business of pro-
viding daily deliveries of pharmaceutical goods and pick
up and delivery of medical supplies and equipment. Dur-
ing the 12-month period preceding the issuance of the
complaint, the Respondent, in conducting its operations
derived gross revenues in excess of $500,000 and pro-
vided services valued in excess of $50,000 directly to
points located outside the State of Indiana.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Ray Umbaugh, manager, has
been a supervisor of the Respondent within the meaning
of Section 2(11) of the Act and an agent of the Respon-
dent within the meaning of Section 2(13) of the Act.
On about April 25, 2001, on two separate occasions,
the Respondent, by Ray Umbaugh at the Merrillville
facility, interrogated employees about their protected
concerted activities.
On about April 27, 2001, the Respondent, by Ray Um-
baugh, told employees that they did not have the right to
speak for other employees.
On about April 27, 2001, Harold Crawford concertedly
complained to the Respondent regarding the wages,
hours, and working conditions of the Respondent’s em-
ployees.
On about April 28, 2001, Amanda Crawford concert-
edly complained to the Respondent regarding the wages,
hours, and working conditions of the Respondent’s em-
ployees.
On about April 28, 2001, the Respondent terminated
its employees, Amanda Crawford and Harold Crawford,
and since that date has failed to reinstate them.
The Respondent terminated Amanda Crawford and
Harold Crawford because they engaged in the conduct
described above, and to discourage employees from en-
gaging in these or other concerted activities.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has interfered with, restrained, and coerced employ-
ees in the exercise of the rights guaranteed in Section 7
of the Act in violation of Section 8(a)(1) of the Act, and
has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
338 NLRB No. 87
BIOMEDICAL SERVICES 743
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(1) of the
Act by terminating and refusing to reinstate employees
Amanda Crawford and Harold Crawford, we shall order
the Respondent to offer them full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights and privileges previously en-
joyed. We also shall order the Respondent to make
Amanda Crawford and Harold Crawford whole for any
loss of earnings and other benefits suffered as a result of
their unlawful terminations, with backpay to be computed
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). Further, we shall re-
quire the Respondent to remove from its files any refer-
ences to the unlawful terminations and refusal to reinstate,
and to notify the two employees in writing that this has
been done and that the terminations will not be used
against them in any way.2
ORDER
The National Labor Relations Board orders that the Re-
spondent, Biomedical Services, Inc., Merrillville, Indiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their protected con-
certed activities.
(b) Telling employees that they do not have the right to
speak for other employees.
(c) Terminating, refusing to reinstate, or otherwise dis-
criminating against employees because they complain to
the Respondent regarding the wages, hours, and working
conditions of the Respondent’s employees, and to discour-
age employees from engaging in these or other concerted
activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

2 We recognize that in its January 7, 2002 letter withdrawing its an-
swer, the Respondent alleged that it ceased operations in August 2001.
The effect of the alleged closing on our standard reinstatement and
make-whole remedies is an issue that may be resolved at the compli-
ance stage of this proceeding.
(a) Within 14 days from the date of this Order, offer
Amanda Crawford and Harold Crawford full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights and privileges previously
enjoyed.
(b) Make whole Amanda Crawford and Harold Craw-
ford for any loss of earnings and other benefits suffered as
a result of their unlawful terminations, with interest, in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to the unlawful terminations
of Amanda Crawford and Harold Crawford, and within 3
days thereafter, notify them in writing that this has been
done, and that the unlawful conduct will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records including an electronic
copy of such records if stored in electronic form, necessary
to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at
its facility in Merrillville, Indiana, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since April 25, 2001.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
3 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744
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 had found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT interrogate employees about their pro-
tected concerted activities.
WE WILL NOT tell employees that they do not have the
right to speak for other employees.
WE WILL NOT terminate, refuse to reinstate, or other-
wise discriminate against employees because they com-
plain to us regarding the wages, hours, and working con-
ditions of our employees, and to discourage employees
from engaging in these or other concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Amanda Crawford and Harold Crawford full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges previously enjoyed.
WE WILL make whole Amanda Crawford and Harold
Crawford for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, with
interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful terminations of Amanda Crawford and Harold
Crawford, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done, and that our
unlawful conduct will not be used against them in any
way.

BIOMEDICAL SERVICES, INC.