Lawrence Klein, P.C.

National Labor Relations Board - Board Decisions

Feb 20, 1998

325 N.L.R.B. 55 (N.L.R.B. 1998)

1
325 NLRB No. 55
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Lawrence Klein, P.C., Michael Brumer, P.C. and
Albert Kalajian, P.C., A Copartnership, d/b/a
The Comprehensive Foot Care Group; City-
wide Foot Care, P.C.; Fulton Foot Care Assoc.,
P.C.; Metrotech Foot Care, P.C.; 34th Street
Foot Care Assoc., P.C.; Jamaica Foot Care
Assoc., P.C.; 3rd Avenue Foot Care Assoc. P.C.
and Medical and Health Employees Division of
Journeymen’s and Production Allied Services
of America and Canada International Union,
Local 157. Cases 29–CA–20625, 29–CA–21215,
29–CA–21263, and 29–CA–21553
February 20, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS HURTGEN
AND BRAME
Upon charges filed by the Union on January 13,
July 31, August 7, and November 5, 1997, and an
amended charge filed by the Union on September 18,
1997, the General Counsel of the National Labor Rela-
tions Board issued a consolidated complaint on No-
vember 26, 1997, against Lawrence Klein, P.C., Mi-
chael Brumer, P.C. and Albert Kalajian, P.C., a copart-
nership, d/b/a The Comprehensive Foot Care Group
(Respondent Comprehensive); Citywide Foot Care,
P.C. (Respondent Citywide); Fulton Foot Care Assoc.,
P.C. (Respondent Fulton); MetroTech Foot Care, P.C.
(Respondent MetroTech); 34th Street Foot Care
Assoc., P.C. (Respondent 34th Street); Jamaica Foot
Care Assoc., P.C. (Respondent Jamaica); 3rd Avenue
Foot Care Assoc. P.C. (Respondent 3rd Avenue), col-
lectively, the Respondents, alleging that they have vio-
lated Section 8(a)(1), (3), (4), and (5) of the National
Labor Relations Act. Although properly served copies
of the charges, amended charge, and consolidated com-
plaint (complaint), the Respondents failed to file an an-
swer.
On January 12, 1998, the General Counsel filed a
Motion for Summary Judgment with the Board. On
January 14, 1998, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondents filed no response. The allegations in the mo-
tion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
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, un-
less 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. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated December 17,
1997, notified the Respondents that unless an answer
were received by December 29, 1997, a Motion for
Summary Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondents have been
jointly owned by Lawrence Klein, P.C., Michael
Brumer, P.C., and Albert Kalajian, P.C., copartners.
Respondent Comprehensive, Respondent Citywide, Re-
spondent Fulton, Respondent MetroTech, Respondent
34th Street, Respondent Jamaica, and Respondent 3rd
Avenue, all of which are New York corporations, have
maintained their principal office and place of business
located at 491 Fulton Street, Brooklyn, New York (the
Brooklyn facility), and various other places of business
in the New York City metropolitan area, where they
have been engaged in providing medical services, in-
cluding foot care, to the public. During the 12-month
period preceding issuance of the complaint, the Re-
spondents, in the course and conduct of their business
operations, collectively derived gross revenues in ex-
cess of $250,000 and collectively purchased and re-
ceived at their Brooklyn facility, or other facilities in
the New York City metropolitan area, goods, products,
and materials valued in excess of $5000 directly from
points outside the State of New York. At all material
times, Respondent Comprehensive, Respondent City-
wide, Respondent Fulton, Respondent MetroTech, Re-
spondent 34th Street, Respondent Jamaica, and Re-
spondent 3rd Avenue have been affiliated business en-
terprises with common officers, ownership, directors,
management, and supervision; have formulated and ad-
ministered a common labor policy; have shared com-
mon premises and facilities; have provided services for
and made sales to each other; have interchanged per-
sonnel with each other; and have held themselves out
to the public as single-integrated business enterprises.
Based on their operations, the Respondents together
constitute a single-integrated business enterprise and a
single employer within the meaning of the Act. We
find that the Respondents are now, and have been, em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union
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2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondents (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All service employees employed in the Respond-
ents’ branch locations, excluding all guards and
supervisors within the meaning of the Act.
Since about 1979, the Union has been the designated
exclusive collective-bargaining representative of the
Respondents’ unit employees and has been recognized
as such representative by the Respondents. Such rec-
ognition has been embodied in successive collective-
bargaining agreements, the most recent of which was
effective by its terms for the period from August 24,
1991, to August 23, 1994 (the 1991–1994 agreement).
This agreement has automatically renewed itself from
year to year, in accordance with certain provisions in
that agreement which permit such extensions, the most
recent renewal being until August 23, 1998, inasmuch
as neither party to that agreement gave timely notice
of intent to terminate or modify the agreement pursu-
ant to the terms of the 1991–1994 agreement. The
Union, by virtue of Section 9(a) of the Act, has been,
and is, the exclusive representative of the unit employ-
ees for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment for all such
employees of the Respondents.
The 1991–1994 agreement, as extended to August
23, 1998 (the 1991–1998 agreement), requires the Re-
spondents, inter alia, to honor a 40-hour workweek; to
permit representatives of the Union to visit the shop at
any time during working hours; to pay employees for
Martin Luther King Day and Memorial Day; and to
pay employees for 2 to 4 weeks of vacation, based on
their length of service.
About late May 1997, the Respondents failed to in-
crease the working hours of Doreen Coleman and
about June 26, 1997, reduced her working hours.
About July 1, 1997, the Respondents discharged Do-
reen Coleman and have since that date refused to rein-
state or offer to reinstate her to her former position of
employment. The Respondents engaged in this conduct
because Coleman engaged in activities on behalf of the
Union, and in order to discourage employees from en-
gaging in such activities or other activities for the pur-
pose of collective bargaining or other mutual aid or
protection, and because she provided testimony to the
Board in the investigation of the unfair labor practice
charge in Case 29–CA–20625.
The Respondents reduced the working hours of em-
ployee Doreen Coleman about July 18, August 15, and
December 14, 1996, and June 26, 1997, and of em-
ployee Eulale Williams about June 16, 1997, and re-
duced the vacation pay of Coleman and Williams
around August 1996. During the Union’s visits pursu-
ant to the 1991–1998 agreement, the Respondents pre-
cluded the Union’s director of organization from visit-
ing its members during working hours at the Jamaica
facility about September 18, 1996, and at the Brooklyn
facility about October 10, 1996. In 1997, the Respond-
ents failed to pay certain unit employees for Martin
Luther King and/or Memorial Day. These matters are
mandatory subjects for the purpose of collective bar-
gaining, and the Respondents engaged in the foregoing
conduct without the Union’s consent, thereby failing to
continue in effect all the terms and conditions of the
1991–1998 agreement.
CONCLUSION OF LAW
By failing to increase the working hours of Doreen
Coleman, by reducing her working hours, by discharg-
ing her and refusing to reinstate her or to offer her re-
instatement, the Respondents have been discriminating
against employees for giving testimony under the Act,
and have also been discriminating in regard to the hire
or tenure or terms and conditions of employment of its
employees, thereby discouraging membership in a
labor organization, and have thereby engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3), (4), and (1) and Section 2(6) and
(7) of the Act.
By unilaterally failing to continue in effect all the
terms and conditions of the 1991–1998 agreement by
reducing the working hours and vacation pay of Do-
reen Coleman and Eulale Williams, precluding union
visits, and failing to pay certain unit employees for
Martin Luther King and/or Memorial Day, the Re-
spondents have been failing and refusing to bargain
collectively with the exclusive collective-bargaining
representative of their employees within the meaning
of Section 8(d) of the Act, and have thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondents have violated
Section 8(a)(3), (4), and (1) by failing to increase the
working hours of Doreen Coleman, by reducing her
working hours about June 26, 1997, by discharging her
about July 1, 1997, and refusing to reinstate her or to
offer to reinstate her since that time, we shall order the
Respondents to offer Coleman immediate and full rein-
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3COMPREHENSIVE FOOT CARE GROUP
1 We shall leave to the compliance stage of this proceeding the
identity of the unit employees denied pay for these holidays.
2 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
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.’’
statement to her former job, including restoration of
the working hours she enjoyed prior to the Respond-
ents’ unlawful actions or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges pre-
viously enjoyed, and to make Coleman whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against her. Backpay shall be
computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondents shall also be required to ex-
punge from their files any and all references to the un-
lawful discharge of Coleman and to notify her in writ-
ing that this has been done.
Furthermore, having found that the Respondents vio-
lated Section 8(a)(5) and (1) by unilaterally reducing
the working hours of Coleman about July 18, August
15, and December 14, 1996, and June 26, 1997, reduc-
ing the working hours of Eulale Williams about June
16, 1997, reducing the vacation pay of Coleman and
Williams around August 1996, and failing to pay cer-
tain unit employees1 for Martin Luther King and/or
Memorial Day, as required by the 1991–1998 agree-
ment, we shall order the Respondents to restore the
working hours of Coleman and Williams and make
Coleman and Williams and the other unit employees
whole for any loss of earnings attributable to their un-
lawful conduct. Backpay shall be computed in accord-
ance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter-
est as prescribed in New Horizons for the Retarded,
supra. We shall also order the Respondents to comply
with the terms and conditions of the 1991–1998 agree-
ment, including permitting representatives of the Union
to visit the shop at any time during working hours.
ORDER
The National Labor Relations Board orders that the
Respondents, Lawrence Klein, P.C., Michael Brumer,
P.C. and Albert Kalajian, P.C., a copartnership, d/b/a
The Comprehensive Foot Care Group; Citywide Foot
Care, P.C.; Fulton Foot Care Assoc., P.C.; MetroTech
Foot Care, P.C.; 34th Street Foot Care Assoc., P.C.;
Jamaica Foot Care Assoc., P.C.; 3rd Avenue Foot Care
Assoc. P.C., Brooklyn, New York, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Reducing or failing to increase the working
hours of employees, or discharging, refusing to rein-
state, or refusing to offer reinstatement to employees
because they engage in activities on behalf of the
Union, or in order to discourage employees from en-
gaging in such activities or other activities for the pur-
pose of collective bargaining or other mutual aid or
protection, or because they provide testimony under
the National Labor Relations Act.
(b) Failing to continue in effect all the terms and
conditions of the 1991–1998 agreement by reducing
the working hours of unit employees, reducing their
vacation pay, precluding visits by union representatives
during working hours, or by failing to pay them for
Martin Luther King and/or Memorial Day. The unit in-
cludes the following employees:
All service employees employed in the Respond-
ents’ branch locations, excluding all guards and
supervisors within the meaning of the Act.
(c) 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.
(a) Within 14 days from the date of this Order, offer
Doreen Coleman full reinstatement to her former job,
including restoration of the working hours she enjoyed
prior to the Respondents’ unlawful actions or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Doreen Coleman, Eulale Williams, and the
unit employees whole for any loss of earnings and
other benefits suffered as a result of the unlawful ac-
tion taken against them, in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Doreen Coleman and within 3 days there-
after notify her in writing that this has been done and
that the discharge will not be used against her in any
way.
(d) Comply with the terms and conditions of the
1991–1998 agreement, including permitting representa-
tives of the Union to visit the shop at any time during
working hours.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at their facility in Brooklyn, New York, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondents’ au-
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4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thorized representative, shall be posted by the Re-
spondents and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondents 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 Respondents have gone out
of business or closed the facility involved in these pro-
ceedings, the Respondents shall duplicate and mail, at
their own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondents at any time since July 18, 1996.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. February 20, 1998
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Peter J. Hurtgen, Member
llllllllllllllllll
J. Robert Brame III, Member
(SEAL) 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 or-
dered us to post and abide by this notice.
WE WILL NOT reduce or fail to increase the working
hours of employees, or discharge, refuse to reinstate,
or refuse to offer reinstatement to employees because
they engage in activities on behalf of the Medical and
Health Employees Division of Journeymen’s and Pro-
duction Allied Services of America and Canada Inter-
national Union, Local 157, or in order to discourage
employees from engaging in such activities or other
activities for the purpose of collective bargaining or
other mutual aid or protection, or because they provide
testimony under the National Labor Relations Act.
WE WILL NOT fail to continue in effect all the terms
and conditions of the 1991–1998 collective-bargaining
agreement with the Union by reducing the working
hours of unit employees, reducing their vacation pay,
precluding visits by union representatives during work-
ing hours, or by failing to pay them for Martin Luther
King and/or Memorial Day. The unit includes the fol-
lowing employees:
All service employees employed in our branch lo-
cations, excluding all guards and supervisors with-
in the meaning of the Act.
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 Doreen Coleman full reinstate-
ment to her former job, including restoration of the
working hours she enjoyed prior to our unlawful ac-
tions or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority
or any other rights or privileges previously enjoyed.
WE WILL make Doreen Coleman, Eulale Williams,
and the unit employees whole for any loss of earnings
and other benefits suffered as a result of our unlawful
actions taken against them, in the manner set forth in
a decision of the National Labor Relations Board.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Doreen Coleman, and within
3 days thereafter notify her in writing that this has
been done and that the discharge will not be used
against her in any way.
WE WILL comply with the terms and conditions of
the 1991–1998 agreement, including permitting rep-
resentatives of the Union to visit the shop at any time
during working hours.
LAWRENCE KLEIN, P.C., MICHAEL
BRUMER, P.C. AND ALBERT KALAJIAN,
P.C., A COPARTNERSHIP, D/B/A THE
COMPREHENSIVE FOOT CARE GROUP;
CITYWIDE FOOT CARE, P.C.; FULTON
FOOT CARE ASSOC., P.C.; METROTECH
FOOT CARE, P.C.; 34TH STREET FOOT
CARE ASSOC., P.C.; JAMAICA FOOT
CARE ASSOC., P.C.; 3RD AVENUE FOOT
CARE ASSOC. P.C.
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