Dr. Shen's

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 788 (N.L.R.B. 1980)

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
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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
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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
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