Rubattino's Restaurant

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert C Delancey d/b/a Rubattino's Restaurant and Hotel & Restaurant Employees & Bartenders Local Union No. 596 Case 19-CA-8196 June 8, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER Upon a charge filed on November 28, 1975, by Hotel & Restaurant Employees & Bartenders Local Union No 596, herein called the Union, and duly served on Robert C Delancey d/b/a Rubattino's Restaurant, herein called the Respondent, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint and notice of hearing on January 16, 1976 With respect to the unfair labor practices, the com- plaint alleges, in substance, that Respondent has re- pudiated the terms of a collective-bargaining agree- ment signed with the Union and, since September 3, 1975, has refused, upon request, to furnish the Union payroll data and a list of employees Respondent failed to file an answer On March 15, 1976, the General Counsel, by coun- sel, filed with the Board in Washington, D C, a Mo- tion for Summary Judgment The Board, on March 19, 1976, issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted Respondent did not file a re- sponse to the Notice To Show Cause Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel Upon the entire record in this proceeding, the Board makes the following Ruling on the Motion for Summary Judgment Section 102 20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows The respondent shall, within 10 days from the service of the complaint, file an answer thereto The respondent shall specifically admit, deny, or explain each of the facts alleged in the com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial All allega- tions in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be ad- mitted to be true and shall be so found by the Board, unless good cause to the contrary is shown The complaint and notice of hearing served on the Respondent specifically states that unless an answer to the complaint is filed by the Respondent within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted by it to be true and may be so found by the Board " Further, according to the Motion for Summary Judgment, on March 1, 1976, counsel for the General Counsel per- sonally contacted Respondent at his place of busi- ness, notifying him of the consequences of failure to file an answer and suggesting that Respondent en- gage counsel, which Respondent indicated he would not do In view of Respondent's failure to file an answer, under the rule set forth above, and no good cause having been shown for such failure, the allegations of the complaint are deemed and are found to be true and we shall, accordingly, grant the Motion for Sum- mary Judgment On the basis of the entire record, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is a sole proprietorship engaged in the restaurant business in Renton, Washington Respon- dent is sole owner of another restaurant in Maple Valley, Washington, which is not involved in this complaint Respondent purchased the Renton res- taurant on June 1, 1975 Between that time and Janu- ary 1, 1976, Respondent grossed $55,000 a month from its Renton and Maple Valley restaurants The complaint further alleges, and 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 juris- diction herein II THE LABOR ORGANIZATION INVOLVED Hotel & Restaurant Employees & Bartenders Lo- cal Union No 596 is a labor organization within the meaning of Section 2(5) of the Act 224 NLRB No 68 RUBATTINO'S RESTAURANT 467 III THE UNFAIR LABOR PRACTICES A The Representation Proceeding 1 The unit mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce The following employees of the Respondent con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act All cooks, bartenders, waitresses and kitchen helpers employed by Rubattino's Restaurant at 803 Third Street, South Renton, Washington, excluding office clerical employees, guards, and supervisors as defined in the Act 2 The representative status of the Union On or about September 3, 1975, Respondent and the Union executed an agreement recognizing the Union as exclusive bargaining representative of em- ployees in the unit described above Said agreement was retroactive from August 1, 1975, and was to re- main in effect until May 31, 1978 Since September 3, 1975, when Respondent recognized the Union as the exclusive bargaining agent of the employees in the above-mentioned appropriate unit, the Union has been, and is now, the exclusive collective-bargaining agent of the unit employees within the meaning of Section 9(a) of the Act B Requests To Bargain and Respondent's Refusals At all times since September 3, 1975, the Union has requested and Respondent has refused to supply payroll data and a list of employees At all material times Respondent, by its failure to abide by the sub- stantive terms and conditions of the currently effec- tive collective-bargaining agreement, has committed a material breach of said agreement and has, in ef- fect, repudiated said agreement We, accordingly, find that Respondent, by the conduct described above, has, since September 3, 1975, and at all times thereafter, refused to bargain with the Union as the exclusive representative of the employees in the appropriate unit, and has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- V THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and honor the collective-bargaining agreement entered into on September 3, 1975, and supply the payroll data and list of employees requested by the Union The Board, upon the basis of the foregoing facts and the entire record, makes the following CONCLUSIONS OF LAW I Robert C Delancey d/b/a Rubattino's Restau- rant is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Hotel & Restaurant Employees & Bartenders Local Union No 596 is a labor organization within the meaning of Section 2(5) of the Act 3 All cooks, bartenders, waitresses and kitchen helpers employed by Rubbatino's Restaurant at 803 Third Street, South Renton, Washington, excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 Since on or about September 3, 1975, the above-named labor organization has been and now is the recognized and exclusive representative of all em- ployees in the aforesaid appropriate unit for the pur- pose of collective bargaining within the meaning of Section 9(a) of the Act 5 By refusing on or about September 3, 1975, and at all times thereafter, to honor and abide by the collective-bargaining agreement and to provide the Union with payroll data and a list of employees, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 6 By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Robert C Delancey d/b/a Rubattino's Restaurant, South Renton, Washington, its officers, agents, suc- cessors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Hotel & Restaurant Em- ployees & Bartenders Local Union No 596 as the exclusive bargaining representative of its employees by refusing to provide to the Union information nec- essary and relevant for effective collective bargain- ing, and refusing to abide by and give force and ef- fect to the substantive terms and conditions of the collective-bargaining agreement executed by the par- ties on or about September 3, 1975, in the following appropriate unit All cooks, bartenders, waitresses and kitchen helpers employed by Rubbatino's Restaurant at 803 Third Street, South Renton, Washington, excluding office clerical employees, guards, and supervisors as defined in the Act (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action which the Board finds will effectuate the policies of the Act (a) Abide by and give force and effect to the sub- stantive terms and conditions of the collective-bar- gaining agreement executed by the parties on or about September 3, 1975 (b) Provide payroll data and a list of employees to Hotel & Restaurant Employees & Bartenders Local Union No 596 which is necessary and relevant for effective collective bargaining (c) Post at its restaurant in South Renton, Wash- ington, copies of the attached notice marked "Ap- pendix " I Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive 1 In the event that 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' days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Hotel & Restaurant Employees & Bartenders Local Union No 596 as the exclusive bargaining rep- resentative of our employees by refusing to pro- vide to the Union information necessary and rel- evant for effective collective bargaining, and WE WILL NOT refuse to abide by and give force and effect to the substantive terms and conditions of the collective-bargaining agreement executed by the parties on or about September 3, 1975, in the following appropriate unit All cooks, bartenders, waitresses and kitch- en helpers employed by Rubattino's Restau- rant at 803 Third Street, South Renton, Wash- ington, excluding office clerical employees, guards, and supervisors as defined in the Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL abide by and give force and effect to the substantive terms and conditions of the col- lective-bargaining agreement executed by the parties on or about September 3, 1975 WE WILL provide payroll data and a list of em- ployees to Hotel & Restaurant Employees & Bartenders Local Union No 596 which is neces- sary and relevant for effective collective bar- gaining ROBERT C DELANCEY d/b/a RUBATTINO'S RESTAURANT