CCY New Worktech, 194 (1999)

September 21, 1999

DECISION AND ORDER

BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND BRAME

On July 12, 1999, Administrative Law Judge Raymond

P. Green issued the attached decision. Respondent XMG Fashions, Inc. (XMG) filed exceptions, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions1 and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified below.2

XMG did not file an answer to the complaint, and did not appear at the hearing.3 The judge accordingly granted the General Counsel's motion on the record for summary judgment against XMG (as well as against the other Respondents), pursuant to the Board's Rules.4 In its exceptions, XMG's president asserts that neither he nor his employees read English, that he did not receive any notices or letters informing him that XMG was the subject of a complaint made by employees of the other Respondents, and that none of his employees recall receiving any mail from the Board.

The record establishes, however, in the form of sworn and subscribed affidavits of service from designated agents of the Board, that, in accordance with the requirements of Section 102.113(a) of the Board's Rules and Regulations, the General Counsel timely served XMG with a copy of the complaint, as well as with a copy of the subsequent erratum to the complaint, by certified mail, return post office receipt requested, on March 26 and June 4, 1999, respectively. Although the record does not contain return post office receipt cards from

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

XMG as proof of service, such method of proof is not exclusive; any sufficient proof may be relied upon to establish service.5 Here, the affidavits of service of the Board agents constitute proof of service of both the complaint and the erratum on XMG, notwithstanding the absence of postal return receipt cards.6 It is also immaterial that the record does not establish that XMG actually received copies of the complaint and the erratum. Service of the complaint and the erratum by certified mail was authorized here, and service was effective upon mailing; proof (in the form here of the affidavits of ser-vice from the Board agents) that the complaint and erratum were mailed to XMG is proof that they were served on XMG.7

1 XMG's exceptions are in the form of an affidavit from its president, Chen Xiang Mei. The General Counsel has requested that XMG's exceptions be disregarded on the grounds that they do not conform to the requirements of the Board's Rules and Regulations. Although XMG's exceptions do not strictly conform to the requirements of the rules, they are not so deficient as to warrant being disregarded. Accordingly, we deny the General Counsel's request.

XMG has requested oral argument. The request is denied as the record, exceptions, and brief adequately present the issues and the positions of the parties.

2 We shall modify the judge's recommended Order in accordance with our decision in Indian Hills Care Center, 321 NLRB 144 (1996).

3 Respondents CCY New Worktech, Inc. and KAM FAI Fashion, Inc. also did not file answers to the complaint or appear at the hearing, and they have not filed exceptions to the judge's decision.

4 Secs. 102.20, 102.24(a), and 102.25 of the Board's Rules and Regulations.

For all of the above reasons, we find XMG's exceptions to be without merit, and we affirm the judge's granting of the General Counsel's Motion for Summary Judgment against XMG along with the other Respondents.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondents, CCY New Worktech, Inc., Kam Fai Fashion, Inc., and XMG Fashions, Inc., all of Brooklyn, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following paragraphs for paragraph

   2(a) and reletter the subsequent paragraphs.

   "(a) Within 14 days from the date of this Order, offer Zhen X. Liang, Kevin Lam, Jian Q. Huang, De Ru Jiang, Qiu F. Zhu, Zhen H. Li, Xiao X. Chen, and Wu Q. Chen full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

   "(b) Make Zhen X. Liang, Kevin Lam, Jian Q. Huang, De Ru Jiang, Qiu F. Zhu, Zhen H. Li, Xiao X. Chen, and Wu Q. Chen whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision."

2. Substitute the attached notice for that of the administrative law judge.

   5 Id., Sec. 102.113(e).

   6 See Best Western City View Motor Inn, 327 NLRB 468 (1999), citing, inter alia, Electrical Workers IBEW Local 11 (Anco Electrical), 273 NLRB 183, 191 (1984) (postal return receipt card not required to prove service).

   7 Best Western City View Motor Inn, supra at 469

   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.

   Section 7 of the Act gives employees these rights.

   To organize

   To form, join, or assist any union

   To bargain collectively through representatives of their own choice

   To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities.

   WE WILL NOT discharge you, reduce your hours of work, or otherwise discriminate against any of you because you engage in concerted activity for the purpose of collective bargaining or for other mutual aid or protection.

   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 Zhen X. Liang, Kevin Lam, Jian Q. Huang, De Ru Jiang, Qiu F. Zhu, Zhen H. Li, Xiao X. Chen, and Wu Q. Chen full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

   WE WILL make Zhen X. Liang, Kevin Lam, Jian Q. Huang, De Ru Jiang, Qiu F. Zhu, Zhen H. Li, Xiao X. Chen, and Wu...