Klein's Park Manor

National Labor Relations Board - Board Decisions

Mar 13, 1978

235 N.L.R.B. 64 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midot Management Corp., d/b/a Klein's Park Manor
and Local 6, International Federation of Health
Personnel, affiliated with International Longshore-
man's Association, AFLCIO. Case 29-CA-5693
March 13, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on June 10, 1977, by Local 6,
International Federation of Health Personnel, affili-
ated with International Longshoreman's Association,
AFL-CIO, herein called the Union, and duly served
on Midot Management Corp., d/b/a Klein's Park
Manor, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 29, issued a complaint
and notice of hearing on July 29, 1977, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before an Administrative Law Judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on or about
December 3, 1976, Respondent laid off employees
Mary Jean Baptiste and Marie Lourdes Metellus,
and that since on or about February 1, 1977,
Respondent has failed and refused to recall, or offer
to recall, said employees because of their union or
protected concerted activities. Respondent failed to
file a timely answer to the complaint.
On December 21, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment with exhibits attached. Subse-
quently, on January 3, 1978, 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 filed a document entitled "Affi-
davit in Opposition to Motion for Summary Judg-
ment" along with an answer and a notice of
appearance. These documents were received by the
Board on January 23, 1978, 6 days after the deadline
for receiving 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
235 NLRB No. 10
National Labor Relations Board has delegated its
authority 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 as follows:
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 complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations 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 issued on July
29, 1977, and duly served on Respondent on August
2, 1977, specifically states that unless an answer to
the complaint is filed by Respondent within 10 days
of service thereof "all the allegations in the Com-
plaint shall be deemed to be admitted by it to be true
and may be so found by the Board." According to
the record herein, and the uncontroverted allegations
of the Motion for Summary Judgment, counsel for
the General Counsel telephoned Respondent on
September 9, 1977, and left a message for Respon-
dent's president advising that no answer to the
complaint had been filed and if no answer was filed
immediately a Motion for Summary Judgment would
be filed. Respondent and its president failed to
respond to this message.' On September 15, 1977,
counsel for the General Counsel sent a letter by
certified mail to Respondent advising that unless
Respondent filed an answer by September 23, 1977,
counsel for the General Counsel would move for
summary judgment. This letter was received by
Respondent on September 16, 1977. No answer
having been filed, counsel for the General Counsel
telephoned Respondent's president on October 5,
1977, and advised that a Motion for Summary
Judgment would be filed. Respondent's president
claimed to be unaware that a complaint had been
issued and requested copies of the complaint and the
September 15 correspondence and additional time to
answer. The requested copies were mailed to Re-
' Respondent's president had also failed to return all pnor telephone
calls made by counsel for the General Counsel both with respect to the
investigation of the charge and as to possible settlement.
64
KLEIN'S PARK MANOR
spondent's president on October 5, 1977, and re-
ceived by him on October 6. On October 11, 1977,
Respondent filed a request for a 10-day extension of
time to file an answer, so Respondent could "hire
proper attorneys." Thereafter, on October 17, the
Regional Director issued an order extending time to
answer to October 25, 1977. Having not received
Respondent's answer, counsel for the General Coun-
sel spoke with Respondent's president on October 27,
and advised him that no answer had been filed and
that the hearing had been postponed. Again, Respon-
dent's president promised that an answer would be
filed "immediately." No answer having been filed by
Respondent by December 21, 1977, on that date
counsel for the General Counsel issued the Motion
for Summary Judgment herein which was received
by and filed with the Board in Washington, D.C., on
December 27, 1977.
In his untimely document entitled "Affidavit in
Opposition to Motion for Summary Judgment," with
attached answer, Respondent's counsel asserts that
"up to in or about the Fall of 1977" Respondent
employed an accountant who was "delegated to take
care of this matter," but who failed to do so due to
"various disputes."2 As we do not believe that the
aforementioned circumstance constitutes good cause
within the meaning of Section 102.20 of the Board's
Rules and Regulations for failure to file a timely
answer, particularly in view of Respondent's repeat-
ed promises to answer over an extended period of
time, and in view of Respondent's failure to file a
timely response to the Notice To Show Cause, we
shall grant the Motion for Summary Judgment.3
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation with its
principal place of business in New York, New York,
is and has been since December 1976 engaged in the
business of operating a private proprietary home, a
health related facility for the aged, and providing
other health related services. During the past year,
which period is representative of its annual opera-
tions generally, Respondent derived gross revenues
in excess of $250,000 from the operation of its
business, purchased and caused to be transported to
its place of business cleaning supplies, food, and
other goods and materials valued in excess of $50,000
in interstate commerce directly from States other
than the State in which it is located, and purchased
2 Respondent presents no other explanation for its failure to answer the
instant complaint, or for its untimely response to the Notice To Show Cause.
3 See, e.g., Coast Container Service. Inc.. 226 NLRB 159 (1976); 0. R.
and caused to be transported to its place of business
cleaning supplies, food, and other goods and materi-
als valued in excess of $50,000 from other enterprises
located in the State of New York, each of which
other enterprises had received the said goods and
materials in interstate commerce directly from States
other than New York.
We find, on the basis of the foregoing, 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.
II1. THE LABOR ORGANIZATION INVOLVED
Local 6, International Federation of Health Per-
sonnel, affiliated with International Longshoreman's
Association, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
On or about December 3, 1976, Respondent laid
off its employees Mary Jean Baptiste and Marie
Lourdes Metellus.4 Since on or about February 1,
1977, Respondent has failed and refused to recall, or
offer to recall, said employees because of their
activities on behalf of the Union and/or because of
their protected concerted activities for the purpose of
collective bargaining and mutual aid and protection.
Accordingly, we find that by the aforesaid conduct
Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed them under Section 7 of the Act, and has
discriminated in regard to the hire and tenure and
terms and conditions of employment of its employ-
ees, thereby discouraging membership in a labor
organization, and thereby has engaged in unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade, traff-
ic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
Cooper and Son, 225 NLRB 1255 (1976); Mr. Trailers Ld., 216 NLRB 1027
(1975); Pat Malano, d/b/a PM Cartage Co., 216 NLRB 688 (1975).
4 The complaint does not allege that the layoffs were violative of the Act.
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act, we
shall order that it cease and desist therefrom, and
that it take certain affirmative action as set forth
below designed to effectuate the purposes and
policies of the Act.
Having found that Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily refusing
to recall employees Mary Jean Baptiste and Marie
Lourdes Metellus from layoff; we shall order Re-
spondent to offer them immediate and full reinstate-
ment to their former jobs or, if such jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges and make them whole for any loss of
earnings they may have suffered by payment to them
of sums equal to the amount they normally would
have earned as wages from the dates of the discrimi-
natory refusals to recall them to the date of the
Respondent's offer of reinstatement, less net earn-
ings, in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).5
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent Midot Management Corp., d/b/a
Klein's Park Manor, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 6, International Federation of Health
Personnel, affiliated with International Longshore-
man's Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Mary Jean Baptiste and Marie Lourdes Metel-
lus are employees within the meaning of Section 2(3)
of the Act.
4. By the acts described in section 1, above,
Respondent has interfered with, restrained, coerced,
and discriminated against employees in the exercise
of the rights guaranteed them in Section 7 of the Act,
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Midot Management Corp., d/b/a Klein's Park Man-
or, New York, New York, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in Local 6, Interna-
tional Federation of Health Personnel, affiliated with
International Longshoreman's Association, AFL-
CIO, by discriminatorily refusing to recall employees
who were laid off, or by otherwise discriminating in
regard to hire or tenure of employment or any term
and condition of their employment.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
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 immediate and full reinstatement to Mary
Jean Baptiste and Marie Lourdes Metellus to their
former jobs or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of earnings in the
manner set forth in the section herein entitled "The
Remedy."
(b) Preserve and, upon request, make available 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
backpay due under the terms of this Order.
(c) Post at its Brooklyn, New York, place of
business copies of the attached notice marked "Ap-
pendix." 6 Copies of said notice, on forms provided
by the Regional Director for Region 29, after being
duly signed by Respondent's 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
I See, generally, Isis Plumbing &d Heatring Co., 138 NLRB 716 (1962).
8 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
66
KLEIN'S PARK MANOR
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local
6, International Federation of Health Personnel,
affiliated with International Longshoreman's As-
sociation, AFL-CIO, or any other labor organiza-
tion, by discriminatorily failing and refusing to
recall, or offer to recall, employees who were laid
off, or by otherwise discriminating in regard to
hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL offer to reinstate Mary Jean Baptiste
and Marie Lourdes Metellus to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of pay suffered as a result
of being discriminatorily refused recall from
layoff, with interest.
MIDOT MANAGEMENT
CORP., D/B/A KLEIN'S
PARK MANOR
67