Steak Loft International

STEAK LOFT INTERNATIONAL Steak Loft International, Inc. and Peter Scally. Case 29-CA-4833 September 29, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on January 22, 1976, by Peter Scally, an individual, and duly served on Steak Loft International, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 29, issued a complaint on May 28, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(l), (3), and (4) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that since on or about July 22, 1975, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by discriminating against Peter Scally by assigning him less desirable workdays, work stations, and start times, and that Respondent engaged in the conduct described above because said employee had assisted Local 650, Chain Restaurant Employees' Union, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and Public Service Employees Union, Local 80, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which are and at all times material herein have been labor organizations within the meaning of Section 2(5) of the Act, and because said employee had previously filed a charge against Respondent in Case 29-CA-4047, and had given testimony under the Act.' Although duly served with a complaint, Respondent failed to file an answer thereto. On July 5, 1977, counsel for the General Counsel, hereinafter the General Counsel, filed directly with the Board a Motion for Summary Judgment based on Respondent's failure to file an answer to the complaint. Subsequently, on July 18, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General ' In Case 29-CA-4047, el at., pursuant to a National Labor Relations Board Decision and Order dated August 25, 1975 (not reported in bound volumes of Board Decisions), Respondent was ordered to cease and desist from, inter alia, assigning any employee to less desirable work stations or providing any employee with a reduction in employment because said 232 NLRB No. 94 Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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: 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 complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations 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 admitted 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 Respondent specifically stated that unless an answer to the complaint was filed within 10 days of service thereof "all the allegations in the Complaint shall be deemed to be admitted by it to be true and may be so found by the Board." Respondent has acknowledged receipt and due service of said complaint and notice of hearing. On or about September 7 and October 12, 1976, a settlement agreement was entered into between Respondent and Scally whereby and where- in Respondent agreed it would not engage in violations of the Act by certain conduct and acts described in the settlement agreement and referred to above and whereby Respondent further agreed that it would take certain affirmative action to remedy the effects of its alleged unfair labor practices, including inter alia the payment by Respondent to Scally of an amount to make him whole for the alleged discrimi- nation against him. On October 19, 1976, based on the representations of the Respondent that it would comply with the provisions of said settlement employee joins or assists Local 650, Local 80, or any other labor organization, or because said employee engaged in any other concerted activity for the purposes of collective bargaining or mutual aid or protection. The Board's Order was enforced by the U.S. Court of Appeals for the Second Circuit on November 20, 1975. 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement, the Regional Director for Region 29 approved the said settlement agreement and thereby, by the terms of the agreement, withdrew the complaint and notice of hearing previously issued. The General Counsel further states in his Motion for Summary Judgment that since on or about October 19, 1976, Respondent has failed and refused to pay Peter Scally the sum previously agreed to by and between the parties as part of the settlement agreement. Further, according to the allegations of the Motion for Summary Judgment, Regional Office personnel attempted to contact Ian Schrager, counsel for Respondent, on several occasions with regard to the moneys owed by Respondent pursuant to the settlement agreement.2 On March 21, 1977, based on the failure and refusal of Respondent to comply with the terms of the settlement agreement, the Regional Director for Region 29 issued an order withdrawing his approval of the settlement agreement and vacating and revoking the same. Also on March 21, 1977, a complaint and notice of hearing was issued in Case 29-CA-4833 which complaint requires Respondent, pursuant to Sections 102.20 and 102.21 of the Board's Rules, to file an answer to it. Said complaint and notice of hearing were duly served on Respon- dent as evidenced by a signed receipt therefor. Further, on April 12, 1977, counsel for the General Counsel sent a letter to Respondent and Respon- dent's counsel by registered mail and regular mail, advising them that they had not filed an answer to the complaint in the required period (which had expired on April 4, 1977) and noting that unless an answer was filed immediately the General Counsel would move for Summary Judgment. The letters addressed to Respondent and counsel for the Respondent which were sent by regular mail were not returned. The registered letter sent to counsel for Respondent was returned as unclaimed. However, the return receipt for the letter sent to Respondent was signed "Steven Rubell" and was returned as received. In view of Respondent's failure to file an answer to the complaint under the rule set forth above and no good cause having been shown for such failure, the uncontroverted allegations of the complaint are deemed admitted and are found to be true. Accord- 2 The motion sets forth that a Board agent attempted to speak with counsel for Respondent by telephone on November 12, 16, and 18, December 3, 6, 14, and 30, 1976, and January 28, 1977; and that on November 18 and December 14, 1976. the Board agent spoke directly to counsel and was told that payment would be made. In addition, the motion submits that on various dates, including but not limited to February 10, 14, and 22, counsel for the General Counsel attempted by telephone to speak with counsel for Respondent. Counsel for the General Counsel was informed that Respondent's counsel was otherwise engaged and would return the telephone call; and, although advised that a complaint would issue unless the aformentioned moneys were paid or unless said counsel ingly, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent Steak Loft International, Inc., Steak Loft, Inc., respectively and have been at all times material herein corporations duly organized under and existing by virtue of the laws of the State of Delaware, with common ownership, officers, and directors, and they constitute a single-integrated business enterprise. Respondent International has maintained its principal office and place of business at 1501 Chapel Street, New Haven, Connecticut, and has various other places of business in the States of New York and Connecticut, including its restaurant, operated by Steak Loft, Inc., which place of business is maintained at 21-45 Utopia Parkway, Bayside, New York, herein called the Bayside place of business, where it is, and has been at all times material herein, continuously engaged in the opera- tion of a public restaurant and related services. During the past year, which period is representative of its annual operations generally, Respondent in the course and conduct of its restaurant operations derives gross revenues therefrom in excess of $500,000. Also during the past year, which period is representative of its annual operations generally, Respondent, in the course and conduct of its business, purchased and caused to be transported and delivered to its Bayside place of business meats, poultry, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in interstate commerce directly from States outside the State in which the restaurant is located. We find, on the basis of the foregoing, 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.3 contacted counsel for the General Counsel, no response was ever received from Respondent's counsel. Further, on various dates between February 22 and March 21. 1977, counsel for the General Counsel attempted to speak by telephone to Steven Rubell, president of Respondent. Counsel for the General Counsel was informed on all occasions that Respondent was unavailable and would return the telephone call and although counsel for the General Counsel again advised that a complaint would issue unless the aforementioned moneys were paid or unless Respondent contacted counsel for the General Counsel, no response was ever received from Rubell or any other representative of Respondent. 3 Although we need not reach the question, we would find sufficient 578 STEAK LOFT INTERNATIONAL II. THE LABOR ORGANIZATIONS INVOLVED Local 650, Chain Restaurant Employees' Union, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, and Public Service Employees U,lion, Local 80, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act by engaging in the following acts and conduct: Since on or about July 22, 1975, until at least December 28, 1975, Respondent discriminated against the Charging Party by assigning him to less desirable workdays, work stations, and start times, because said employee had assisted Local 650 and Local 80, had filed the charge in Case 29-CA-4047, and had given testimony under the Act. Accordingly, we find that by the aforesaid conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and by such conduct Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) 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 as set forth in section 1, above, have a close, intimate, 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 com- merce. v. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that the unfair labor practices committed by Respondent were of a character which go to the very heart of the Act, we shall also order basis for assertion ofjurisdiction over Respondent herein by virtue of the Board's previous assertion of jurisdiction in Case 29-{A-047, el al, which assertion was upheld by virtue of the enforcement of the Board's Order by the U.S. Court of Appeals for the Second Circuit. Respondent to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. We have found that Respondent discriminated against the Charging Party by assigning him to less desirable workdays, work stations, and start times. We shall therefore order that Respondent make said employee whole for any loss of pay suffered because of the discrimi- nation against him. Backpay shall be based upon the earnings he normally would have received beginning from July 22, 1975, until the date Respondent ceases its discrimination against him. The backpay shall be computed on the basis set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest com- puted in accordance with the formula set forth in Florida Steel Corporation, 231 NLRB 651 (1977).4 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW i. Steak Loft International, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 650, Chain Restaurant Employees' Union, Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO, and Public Service Employees Union, Local 80, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. By discriminating against the Charging Party because said employee had assisted Local 650 and Local 80, Respondent discriminated in regard to the hire and tenure of employment of employees, thereby discouraging membership in or activities on behalf of a labor organization, and Respondent has thus engaged in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act. 5. By discriminating against the Charging Party herein because he filed a charge in Case 29-CA-4047 and gave testimony under the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(aX4) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 4 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Steak Loft International, Inc., Bayside, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assigning employees less desirable workdays, work stations, or start times because said employees have assisted Local 650, Chain Restaurant Employ- ees' Union, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO; Public Service Employees Union, Local 80, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America; or any other labor organization, because they have filed charges with the National Labor Relations Board under the National Labor Relations Act, or because they have given testimony or statements under such Act. (b) In any other manner interfering with, restrain- ing, 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) Make whole employee Peter Scally for any losses he may have suffered by reason of the discrimination against him, as set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, 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. (c) Post at its Utopia Parkway, Bayside, New York, location copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 5 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assign our employees to less desirable workdays, work stations, or start times because of their membership in or activities on behalf of Local 650, Chain Restaurant Employ- ees' Union, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO; Public Service Employees Union, Local 80, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America; or any other labor organization. WE WILL NOT assign our employees to less desirable workdays, work stations, or start times because they have filed charges under the National Labor Relations Act or given testimony to the National Labor Relations Board or any agent thereof. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole employee Peter Scally for any losses he suffered by reason of our discrimi- nation against him, with interest. STEAK LOFT INTERNATIONAL, INC. 580