Travelodge San Francisco Civic Center

National Labor Relations Board - Board Decisions

May 16, 1979

242 N.L.R.B. 287 (N.L.R.B. 1979)

I R\\ IL(I)(I SAN RAN(ISC() (IVI( (I N IR
.lae K. Ice ad )ang I. Son a partnership /h/a
Travelodge San Francisco (iic ('enter ad Stecn
L. Smith. (ase 20 (A 14223
Ma\ 16. 1979
DI)('ISION ANI) ()ORDER
BY M1IAIBIRS PI1N IM, tRI'IY. .) IRt I Sl) I
['pon a charge iled on Novermber 24, 1978. h\ Ste-
ven I.. Smith. an indi idual, herein called the (ar_-
inc Partm. and duly servedl on .Jae K. l.ee and )ane
H-. Song, a Partnership d bIa iravelodge San ran-
cisco ('ivic ('enter. herein called Respondent. the
General Counsel of the National .Labor Relatios
Board h the Regional Director tOr Region 20, issued
a complaint and notice of' hearing on .Ianuar 15.
1979. against Respondent. alleging that Respontdent
had engaged in and as enaging in unfir lahor
practices affectiing corn mmerce within tile ienanc ot
Section 8(a)(3) and (1) and Section 26} and (7) of the
National .ahor Relations Act. as aniended. (Copies of
the charge. complaint, and notice oft hearing bef'ore
an administrative law . udge weir dul sered on the
parties to this proceeding.
With respect to the unf'air labor practices. the com-
plaint alleges, in substance, that on or about No\fiel-
her 10. 1978. Respondent. h its owncr manager. Jlace
K. Lee. discharged Smith because of Iiis nembcrship
in or activities on behal f of otel and Restaurant
Emploxees and Bartenders nion. ocal 2. or be-
cause he engaged in other protected concerted a'-
tivitv.
Respondent I'lailed to file n answer to the coin-
plaint b\ the time prescribed therein.
Thereafter, according to te uncontroverted dociu-
ments submitted with her instant Motion for Sum-
mary Jdgment, counsel for the (ieneral (ounsel
wrote to Respondent on ebruar 7 1979. stating
that an answer to the complaint had not et been
received. although it was due , J.anuar . 25, 1979.
'he eneral Cou nsel then extendcd te tinlie for il ig
the answer to hebruar\ 16. 1979. ()n ebruar 8.
1979. Respondent sent a letter to counsel for the ell-
eral ounsel in wIhichl it generalI denied tile clim mis-
sion of unfair labor practices and tated its reasons
fokr the discharge of te commission of unfair labor
practices and stalted its reisons for te di,,charg c re l'
the Charging Part. I tow\eer. counsel for (ieer.li
('Counsel determined that the letter did not COnll'rl
with the Board's Rules concerning the alequacl ot ani
answer. Further, there was no indication that i con-
formance with the Board's Rules. the (ChargLing Part.
had been ser.cd ,ith a cop\ of' the allS\ .. I hereOre.
on Februark 13. 1979. counsel fr the (leneral ('onn-
sel rote to Respondent explatining the equillrnements
of a leCgall sulicint ans\ er. stlting that the ICletter of,
IlebruarN 8. 1979 did not meet thllese i'equlircllments
indl aigaiii c\tendilg tile ime for fil ng an answlcr to
[:ebruar 2. 1979. No further comniunicitiIIon was
received from Respondent.
()II l:ebrutr\ 20, 1979. cou nsel for tlhe ( i;enral
(Counsel iled directl\ with the Board a /Motohn Ir
Suiiniar\ ludguenlt w,it ehibits ttached. Suhse-
qucntl\. n larch . 1979, the Board issued an ()rder
tri lte-,rrlig the ploceedin tllo tile Boaid a;tlld Notice
[0 S10 Cse \\ lk the (eneral ('OUlnSel's Motioll
lo SnlMar\ JxIlgment should not e granted. Re-
SpOnldenlt did not tile .i response to the Notice o
Show ('anse, so the allegations of the Motioll for
SIn itar' Ju.1dgmneII stalnd uncontrocrtecd.
Pursuant to the prokisions of Section 3) of the
National Lator Relations Act, s amended, the Na-
tional Ihabor Relations Board has delegatted it, a-
thllorit' in his proceedir t a three-lmeniber patnel.
pon te etire ecord ill this proceeding. the
Board makes the tolhlowing:
Ruling on tile Motlon for SLmnlItr \ .udgnlent
Sction 12.2) of the Board's Rule, ald Regula-
tions. Series . s amended, provides s follo,,s:
I lie respondent shall. \ithin It) da s romni tlhe
,,er-\ ice of the complaint, ile an as\,er thereto, .
I lie respondent shalll speciticall adniit. de , . or
c\plaii each o tile facts alleged n the corm-
plaiint. tlIs the rCSpToident IS \thout kno\'l-
edlge. in \ iich case the respondent shall so state.
such iteincilt opcrating ll s denial. All allega-
tols, I tle comllLlint. i no aiis'\c is filed, i
an, allegation i the complaint not specificallk
deiied or c\plailed ill an answr tile]. unless the
respondent shall state i the answcr that ie Is
itlouLlt knole\]dgc, shall be deemed to e admit-
teL to e true nd shall he so lound h the
Board. unless good cause to ile colitrlr' is
sho% II.
lhe complaint ad notice of' hearing issued on
.hlauar, 15s., 979, and wereC dul[ sed oIn Respon-
deti. lec complaint speciticallk statedl tlhat unless an
ans\\er to the corniaint is iled h\ Respondent ithin
It) dal;s ,of er\ice thereof all the allegations in tlhe
complaint "shill he deened to he admlitted t be true
aind m N\ be SO IfL d b\ the Board." .A's noted a boe.
on :chbruar\ 7. 1979. counsel for the (Ceneral (A'ounse
adii,,cd Resp,ondent thit an ans\wer had not been re-
cei'.ed but etended thie te I'or tiliig :in 111\ er.
\Vhile Respondent then iled its letter dated L;ebruar'\
8. 979. is Its pulported ans\er. counsel tor the (en-
eral (ounsel tlhcreater wrote to Respondent. indicat-
242 N.RB No. 5s
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that the letter was not a legally sufficient answer
but again extended the time for filing a legally ade-
quate answer. No answer was thereafter filed by Re-
spondent.
The General Counsel concluded that Respondent
did not file a legally adequate answer to the com-
plaint. Although Respondent, in its letter of February
8, 1979, generally denied that Charging Party Smith
was discharged for unlawful reasons and stated that
he was discharged for leaving his duty station without
permission, the letter was rejected on the ground that
this answer did not conform with Section 102.20
quoted above. As stated above, there is also no evi-
dence that the Charging Party was served with a copy
of this purported answer. Counsel for the General
Counsel, in her letter to Respondent of February 13,
1979, brought these matters to Respondent's atten-
tion and outlined the requirements of a legally suffi-
cient answer, supplying a copy of the Board's Rules
regarding the filing of such an answer. Respondent
thereafter failed to comply with these requirements,
even though the time period for such compliance was
again extended. As noted, Respondent has not filed a
response to the Notice To Show Cause.
It is clear that when an answer to an unfair labor
practice complaint is not filed in compliance with the
Board's Rules judgment may be rendered on the basis
of the complaint alone.' Therefore, no good cause to
the contrary having been shown and in accordance
with the rule set forth above, the allegations of the
complaint are deemed to be admitted and are found
to be true. Accordingly, we grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a partnership of Jae K. Lee and Dang H.
Song engaged in the operation of a motel and restau-
rant facility in San Francisco, California. During the
period from May 26. 1978, when Respondent began
operations, to December 13, 1978, Respondent. in the
course and conduct of its business operations, re-
ceived gross revenues of $420,000 and purchased and
received goods, materials, and supplies valued in ex-
cess of $5,000 which originated from sources located
outside the State of California.
In asserting jurisdiction over hotels and motels, the
Board normally applies a standard of $500,000 of
gross annual revenues.2 While Respondent had re-
I Neal B. Scottrr Commodities, Inc., 238 NLRB 32 (1978).
2 Penn-Keysrone Realty Corp, 191 NLRB 800 (1971).
ceived only $420,000 in gross revenues from the time
it began operations on May 26, 1978. until December
13, 1978, it is clear that Respondent's gross annual
revenues may reasonably be expected to exceed
$500,000. As it has long been Board policy to project
annual revenues of new businesses' and since it is
clear that Respondent may reasonably be expected to
meet the Board's jurisdictional standards for hotels
and motels, we find 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.
II. TIlE .A(BOR OR;ANIZ.AION INO().VI)
Hotel and Restaurant Employees and Bartenders
Union, Local 2, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE (CHARGING PARTY
Steven L. Smith is an employee within the meaning
of Section 2(3) of the Act.
IV. TlE UNFAIR I.ABOR PRACII(ES
On or about November 10, 1978, Respondent, by
Jae K. Lee. its owner/manager, and an agent of Re-
spondent, discharged Steven L. Smith because of his
membership in or activities on behalf of the Union, or
because he engaged in other concerted activities for
the purpose of collective bargaining or other mutual
aid or protection.
Accordingly, we find that by the aforesaid conduct
Respondent discriminated in regard to the terms and
conditions of' employment of its employees thereby
discouraging membership in a labor organization,
and that by the aforesaid conduct Respondent en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
V. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section
IV, above, occurring in connection with its operations
described in section I, above, have a close. intimate,
and substantial relationship to trade. traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
'General Sea, and BacA Mfg. Corp, 93 NLRB 1511 (1951).
288
TRAV1tIO)(iF SAN FRAN CIS('O CIVIC (TINTER
Having found that Respondent has engaged in and
is engaging in unfair labor practices w ithin the mean-
ing of Section 8(a)(3) and (I) of the Act. we shall
order that it cease and desist therefrom. and that it
take certain affirmative action, set forth below. which
is designed to effectuate the purposes and policies of
the Act.
Having found that Respondent violated Section
8(a)(3) and (I) of the Act, b discriminatoril dis-
charging Steven . Smith. we shall order Responldent
to offer him immediate and full reinstatement to his
former position or, if such position no longer exists. to
a substantially equivalent position, without prejudice
to his seniority or other rights and privileges previ-
ously enjoyed, and make him whole for any loss of
earnings he may have suffered by paNy met to him of
sums equal to the amount he normally would have
earned as wages from the date of the discriminatorx
discharge to the date of Respondent's offer of rein-
statement, less net earnings, in accordance with the
formula set forth in F. Wt. Wt'owortl Com/panv, 91
NLRB 289 (1950), with interest as prescribed in Flor-
ida Steel Corporation. 231 NL.RB 651 (1977).4
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI. SIONS OrI I.LAx
I. Respondent, Jae K. IFee and Dang H. Song. a
partnership d/b/a Travelodge San Francisco Civic
Center, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Hotel and Restaurant Employees and Bartend-
ers Union. Local 2. is a labor organization within the
meaning of Section 2(5) of the Act.
3. Steven L. Smith is an emploee withiln the
meaning of Section 2(3) of the Act.
4. By the acts described in section IV. above. Re-
spondent has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed
them in Section 7 of the Act and has discriminated in
regard to their hire or tenure of employment thereby
discouraging membership in a labor organization.
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.
See, generally. Iris Plmbrhilng & Heoating ( 138 NLRB
7
16 (11962)
Pursuant to Section 10(c) of' the National I.abor
Relations Act, as amended. the National Labor Rela-
tions Board htereby orders that the Respondent. Jae
K. I.ee and Dang H. Song. a Partnership d/h/a Trav-
elodge San Francisco C ivic ('enter. San Francisco.
California, its officers. agents, successors, and assigns.
shall:
I. (Cease and desist from:
(a) Discouragirng membership in IHotel and Res-
taurant Emplo ees and Bartenders Union. Local 2,
by discriminatorily discharging or otherwise discrimi-
nating against employees in regard to their hire or
tenure of employment or an'\ term and condition of
emplo\ mient because they engage in union or other
protected concerted activities.
(h) In ann like or related manner interfering with.
restraining, or coercing employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
2. Take the following affirma tive action which the
Board finds will effectuate the policies of the Act:
(a) Offer Steven L.. Smith immediate and full rein-
statement to his former job or. if' ttil position no
longer exists. to ai substantiallI equivalent position,
without prejudice to his seniority or other rights and
privileges previously enjoyed ad make him whole
for an! loss of earnings in the maliner set forth in the
section herein entitled "The Renied."
(b) Preserve and. upon request. make available to
the Board or its agents tfor examiinati ion and copying.
all pa\roll records. social security payment records,
timecards. personnel records and reports, and all
other records necessarN to analyze the amount of
backpal due under the terms of this Order.
(c) Post at its San Francisco. California. place of
business copies of the attached notice mnarked "Ap-
pendix." 5 Copies of said notice. on forms provided b5
the Regional Director for Region 20. after being dulx
signed bh Respondent's representative. shall be
posted by Respondent imediatel upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter. in conspicuous places. including all
places here notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to instisure that said notices are not altered. de-
faced. or co ered b any other material.
(d) Notil\ the Regional Director for Region 20. in
writing, within 20 daxs fromn the date of this Order.
what steps Respondent has taken to complN herewith.
! In the eent that this Order is entorced h a dgment iofa L nted Stales
coulrl if appeals. the irds tllhe nince reading "Posted h\ order of he
National Labor Rcltiolns Boalrd" hall reaid "Posted Pursuant toa . Judgmenl
ot' the L nited Slates (o urt Ail ppe.lls [-ltlorcing an Order ot he Nationll
Lahbor Relainst Board."
V. 1il Ri.ILI)Y ORDER
I)l-( ISIONS O()I NA I ION . I.AB()R RtI. I IONS BOARI)
A\ PIq' N I)IX
Noti1( t I () !MII () il:S
P()SII) tBY ()RI)IR (I 111F
N ,\l()NAI [.AO()R RII AII oNs B()XRI)
Aln Agency of the lnited States Governllent
WI \'11i1. No1 discourage membership ill Hotel
and Restaurant F.mployecs and Bartenders
ULnion. ocal 2. or any other labor organization.
h\ discriminatorily discharging. or otherwise dis-
crimlinating against employees in regard to their
hire or tenure of employ ment or an) term or
condition of' employment.
Wi 'I 111 NI ill any like or related manner
interferie with. restraili, or coerce our employees
in the exercise ol' the rights guaranteed them b)
Section 7 of' the Act.
Wi \i [ offer Steven L. Smith immediate and
Iutill reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position. without prejudice to his se-
nioritv or other rights and privileges previously
enjoed, and vi : 1lt i make him whole for any
loss of pa sufi'ered as a result of being discrimi-
natoril discharged. with interest.
JA: K. 1.+1 ANI) DN(; H. SoN;. A PARI-
NERSIIP I)/B/A TRAVELODGE SAN FRAN-
( IS(O CIVIC CEN]ER
29()