Nottingham Restaurant

NOI'IN(iHtAM R:SIALIRANI' E. E. Sousa, Inc. d/b/a Nottingham Restaurant and Hotel and Restaurant Employees and Bartenders Union, Local 28, AFL-CIO. C'ase 32 ('A 241 (for- merlv 20-CA 13026) July 19, 1979 DECISION AND ORDER BY CItiARNIAN FANNING ANt) MI MlbI RS JI NKINS ANI) MURPIY Upon a charge filed on June 17, 1977.1 hb Hotel and Restaurant Employees and Bartenders Union. Local 28. AFL CIO. herein called the Union. and duly served on E. E. Sousa, Inc., d/h/a Nottingham Restaurant, herein called Respondent, the General Counsel of the National Labor Relations Board. by the Regional Director for Region 32, issued a com- plaint and notice of hearing on November 16. 1977, alleging that Respondent had engaged in and was en- gaging in certain unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National abor Rela- tions Act, as amended. Copies of the charge. com- plaint, and notice of' hearing before an administrative law judge were duly served on the parties to this pro- ceeding. On November 25, 1977. the complaint was amended by the Regional Director to allege addi- tional violations of Section 8a)(1) of the Act. There- after, Respondent. by its counsel, filed an answer to the complaint and amendment to the complaint. In its November 29. 1977, answer. Respondent admitted certain allegations. denied others, and affirmativel asserted that the complaint failed to state a claim upon which relief may be granted, and that the Board lacked jurisdiction. Respondent specifically denied all allegations that it had committed unfair labor prac- tices or engaged in conduct constituting such. Subse- quently, on February 8. 1978. the Regional Director amended the complaint to allege other violations of Section 8(a)( I ) of the Act. Respondent. on February 13, 1978. answered the amendment, again denying the commission of all unfair labor practices alleged. An informal settlement agreement was entered into by Respondent on February 22, 1978, and approved by the Regional Director. The complaint was then withdrawn. On August 24. 1978. the Regional Office received notification that Respondent had declared bankruptcy. Based upon Respondent's failure to dis- charge its obligations under the terms of' the previ- ously approved settlement agreement, the Acting Re- ' The original charge w;s amended bh lhc I nionn n Septerher 21. O()to her 18. and November II. 1977. prlir t isiluance t .1 complin t .and ntltc of healrlng. gional l)irector subsequentl\ withdrew his approval of that agreement. Thus. on December 21. 1978.2 the Acting Regional Director issued an order withdra\v- ing approval of' the settlement agreement. complaint. and notice of' hearing, a cop\ of which was served on Respondent and on all known counsel for Respon- dent. ('ounsel for the 'Irustee in Bank ruptc. ho had been served with the order withdraliing aploval of the settlement ageemnent. complaint, and notice of hearing, was notified bh letter dated JanuarI 30). 1979. that failure to file an answer within 10 da\s of that date would result in counsel for the General ('ounsel's filing a Motion for Summarn .ludgment.t Thereafter, on March 12. 1979. the G(eneral ('oun- sel, hy counsel, tiled directly with the Board a Motion for SummarN Judgment, with exhibits attiched, re- questing issuance of a Board order based pon tlhe allegations of the complaint. A\ siupplemenltall Inlello- ranndum to his Motion for Sumilar\ Jr udtgmllnt iwas filed bh the G(eneral Counsel on March 23 179. ()O April 6 1979. the Board issued its order transfrring n the proceeding to the Board and Notice To Shoa Cause why the General (ounsel's Motion tfor Sum- mary Judgment should not he granted. No response to the Notice To Show (Cause has been recei ed hb the Board. Pursuant to the provisions of Section 3(h) of the National Labor Relations A.ct as amen ded, the Na- tional I ahbor Relations Board has delecgated its au- thorit' in this proceeding to a three-memcber panlel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summarv Judgment In the Motion for Summary Judgment herein. counsel !r the Genera! (Counsel aers that neither Respondent nor the trustee in hankruptcy4 has filed an answer to the order withdrawing approval of the settlement agreement. complaint, and notice of hear- ing. and that tinder Section 102.20 of the National Labor Relations Board Rules and Regulations. Series 8. as amended, the Board should find the allegations of the complaint to be true and should issue an Order based on such findings. Hloweer, as the Motion for Summary Judgment correctly sets forth. Respondent ! Although in her Motion for Sulila.lr' Judgllllent ilnsel linr the (;cneral (ounsel stales tha3 the order ius issied Nnxcnlhcr 21. 197 Ihis idate aIp- pearh ito he an inlladerient crror nisialnuch a1 the rder i d.ilted I)eccnimber 2 1 1978. O()n January 10. 1979. he Regional tirecor altl. fileCt! a prool i cimi11l with the Bankruptc' ('OLrt tr the Northern i)litrict ( ilkrlla 4 In the supple enital nmemnranndu n tiled ni \I.crl 21. I)"), CiOlniicl tr Ihe (Generia (osunel stated thlt the I instae in 1llmlkrilntp s i, hiarged i h the proteti n 1 the interestl t1 crcdltirs. .nr l [hill 10iI l l t ' he rcsllt Ior tiling an inlecr ill this tinler hitll ti1rletl icrn lhit Rcsponi dtil atld 1 knsll ouiin cl tr RcsI p ndcn l crt srcdl , il thic rde r itrld lit 11 o ll i hiln tiled ani alisU.r 243 NLRB 13 No. 10)3 567 DI(CISIONS ()F NATIO()NAl. I.ABOR RELATIONS BOARD did in fact file a timely answer to the original com- plaint and amendment to the complaint on Novem- her 29, 1977, and it also filed a timely answer to the amendment to the complaint issued by the Regional Director on February 8, 1978. In both answers, Re- spondent denied the commission of any unfair labor practices. Inasmuch as the substantive allegations of the complaint and notice of hearing issued on No- vember 16, 1977, and amendments thereto issued on November 25. 1977, and February 8. 1978, are the same as those contained in the order withdrawing ap- proval of the settlement agreement, complaint, and notice of hearing issued on December 21. 1978. Re- spondent has in fact answered those allegations. In so doing, Respondent has denied the commission of any unfair labor practices, and thus has raised litigable issues. In our view, granting a Motion for Summary Judgment based on the application of Section 102.20 of the Board's Rules is not appropriate in such cir- cumstances 5 We shall therefore deny the motion. ORDER It is hereby ordered that the General Counsel's Motion tfor Summary Judgment in the above-cap- tioned proceeding be, and it hereby is, denied. II Is i:URIIIiR (RD)IRIED that the above-entitled proceeding be, and it hereby is, remanded to the Re- gional I)irector fr Region 32 fior further appropriate action. ' Arlanric Buvines and ( onmunmt Deelopn'nt (C ,rporalflon. d/ ba 1WUSS Rulrd, 236 NLRB 1529 (1978).