Queen City Ambulance Services

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1243 (N.L.R.B. 1988)

QUEEN CITY AMBULANCE SERVICE 1243
Queen City Wheel Chair Service, Inc. d/b/a Queen
City Ambulance Service; Eileen K. Field, Inter-
im Trustee in Bankruptcy and Jean Smith. Case
9-CA-23556
May 31, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
Upon a charge filed by Jean Smith, an individ-
ual, on September 23, 1986, the General Counsel of
the National Labor Relations Board issued an
amended complaint October 20, 1987, against the
Company, the Respondent, alleging that it has vio-
lated Section 8(a)(1) of the National Labor Rela-
tions Act. Although properly served copies of the
charge and amended complaint, the Respondent
has failed to file an answer.'
On March 3, 1988, the General Counsel filed a
Motion for Summary Judgment. On March 7, 1988,
the Board issued an order transferring the proceed-
ing 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.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions provides 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. The amended com-
plaint states that unless an answer is filed within 14
days of service, "all of the allegations in the com-
plaint shall be deemed to be admitted to be true
and shall be so found by the Board." Further, the
undisputed allegations in the memorandum in sup-
port of the Motion for Summary Judgment disclose
The affidavit of service of the amended complaint is unsigned and
the record contains no return receipt card that would establish service of
the amended complaint It is clear, however, that the Notice to Show
Cause why the General Counsel's Motion for Summary Judgment should
not be granted was received by Trustee Field, because there is a signed
returned receipt card from her for that document Because the bankrupt-
cy trustee received the Notice to Show Cause and made no response, in-
cluding no contention that the amended complaint had not been served,
we accept the General Counsel's uncontroverted allegation that the
amended complaint was properly served on the Respondent. See Ohio
Container Service, 277 NLRB 305, 306 (1985) (bankruptcy trustee is
viewed as same entity that existed before the bankruptcy petition was
filed).
Member Cracraft finds it unnecessary to rely on the fact that the trust-
ee received the Notice to Show Cause in order to grant the Motion for
Summary Judgment in this case In her view, the allegations in the
Motion for Summary Judgment regarding service, which stand undenied,
are sufficient to warrant granting the General Counsel's motion
that on February 24, 1988, Eileen K. Field, interim
trustee in bankruptcy, was telephonically advised
that unless an answer was filed, a Motion for Sum-
mary Judgment would be filed. Field stated she did
not intend to file an answer to the amended com-
plaint.
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 fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Ohio
corporation with an office and place of business in
Cincinnati, Ohio, was engaged in the transportation
of patients by ambulance or wheelchair vehicles.
During the 12 months prior to the filing of the
charge, the Respondent, in the course and conduct
of its operations, derived gross revenues in excess
of $500,000 and purchased and received at its Cin-
cinnati, Ohio facility products, goods, and materials
valued in excess of $5000 directly from points out-
side the State of Ohio. About September 10, 1987,
Eileen K. Field was duly designated by the United
States Bankruptcy Court for the Southern District
of Ohio, Western Division at Cincinnati, Ohio, as
interim trustee in Queen City Ambulance Service,
Case No. 1-87-03136 (a proceeding under Chapter
7 of the Bankruptcy Code of 1978, 11 U.S.C. § 101
et seq.), which is presently pending before the
United States Bankruptcy Court of the Southern
District of Ohio. We find that the Respondent is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In May 1986, the exact date being unknown to
the General Counsel, the Respondent's employees,
including, viz, Jean Smith, Tim Waugh, and Bruce
Ballingham, concertedly complained to the Re-
spondent regarding the employees' wages, hours,
and working conditions, including, inter alia, a re-
duction in the employees' pay. About August 12,
1986, the Respondent's employees Jean Smith, Tim
Waugh, and Bruce Ballingharn engaged in concert-
ed activities with other employees for the purpose
of mutual aid and protection by expressing their
views concerning the working conditions of em-
ployees at the Respondent to the media, viz,
WKRC-TV, Channel 12, for subsequent telecast.
About August 22, 1986, the Respondent discharged
its employee Jean Smith. About September 3, 1986,
the Respondent constructively discharged its em-
288 NLRB No. 140
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee Tim Waugh by transferring him to a posi-
tion on the day shift from his prior night-shift posi-
tion.
The Respondent discharged Smith and construc-
tively discharged Waugh because the employees
engaged in the conduct described above, and in
order to discourage employees from engaging in
such activities or other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection.
In disposition of Case 9-CA-23556, the Re-
spondent and the Charging Party entered into an
informal settlement agreement which was approved
by the Regional Director for Region 9 on Decem-
ber 29, 1986. Since about April 24, 1987, by failing
to make the $300 installment payment due on that
date and subsequent amounts due monthly thereaf-
ter, the Respondent has failed and refused to
comply with the terms of the settlement agreement.
Because the Respondent violated the terms of the
settle\nent agreement, the Regional Director for
Region 9, on July 20, 1987, issued an order, pursu-
ant to Section 101.9(e)(2) of the Board's Rules and
Regulations and Statements of Procedure, vacating
and setting aside the settlement agreement.
By discharging Smith and constructively dis-
charging Waugh, the Respondent has interfered
with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the
exercise of the rights guaranteed them by Section 7
of the Act, and the Respondent thereby has been
engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
By discharging Jean Smith and constructively
discharging Tim Waugh because they engaged in
concerted activities with other employees for the
purpose of mutual aid and protection, and in order
to discourage employees from engaging in such ac-
tivities or other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection, the Respondent has interfered with, re-
strained, and coerced employees in the exercise of
their Section 7 rights and has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(1) of the Act, we shall order it to
cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act. We shall order the Respondent to offer em-
ployees Jean Smith and Tim Waugh immediate and
full reinstatement to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed. We further shall order the Respondent to
make the above-named employees whole for any
loss of earnings they may have suffered as a result
'of the discrimination against them, to be computed
in the manner prescribed in F. W Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded. 2 We shall also
order the Respondent to remove from its files any
reference to the unlawful discharges and notify the
employees in writing that this has been done and
that the unlawful discharges will not be used
against them in any way.
ORDER
The National Labor Relations Board orders that
the Respondent, Queen City Wheel Chair Service,
Inc. d/b/a Queen City Ambulance Service; Eile6n
K. Field, Interim Trustee in Bankruptcy, Cincin-
nati, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or constructively discharging
employees because they engage in conceited activi-
ties with other employees for the purpose of
mutual aid and protection, and in order to discour-
age employees from engaging in concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection.
(b) 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 neces-
sary to effectuate the policies of the Act.
(a) Offer Jean Smith and Tim Waugh immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-.joyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them, in the manner set forth
in the remedy section of the decision.
(b) Remove from its files any reference to the
unlawful discharge of Smith and constructive dis-
charge of Waugh, and notify them in writing that
2 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall
be computed at the "short-term Federal rate" for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.0 § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
QUEEN CITY AMBULANCE SERVICE

1245
this has been done and that the discharges will not
be used against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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.3
(d) Post at its facility in Cincinnati, Ohio, copies
of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 The General Counsel has requested that the Order include a visita-
torial clause. We find no need for such a remedial provision in the cir-
cumstances of this case. See Cherokee Marine Terminal, 287 NLRB 1080
(1988).
4 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 Nation-
al 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"
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 and abide by this notice.
WE WILL NOT discharge or constructively dis-
charge you because you engage in concerted ac-
tivities with other employees for the purpose of
mutual aid and protection, and in order to discour-
age you from engaging in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer employees Jean Smith and Tim
Waugh immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify Jean Smith and Tim Waugh
that we have removed from our files any reference
to Smith's discharge and Waugh's constructive dis-
charge and that we will not use the discharges
against them in any way.
QUEEN CITY WHEEL CHAIR SERV-
ICE, INC. D/B/A QUEEN CITY AMBU-
LANCE SERVICE; EILEEN K. FIELD,
INTERIM TRUSTEE IN BANKRUPTCY