Le Club, Inc.

329 NLRB No. 70 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Le Club, Inc. and Local 100, Hotel Employees and Restaurant Employees International Union, AFL–CIO. Case 2–CA–29433 October 15, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND BRAME Upon a charge filed by the Union on May 30, 1996, the General Counsel of the National Labor Relations Board issued a complaint on April 30, 1999, against Le Club, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent failed to file an answer. On September 13, 1999, the General Counsel filed a Motion for Summary Judgment with the Board. On September 15, 1999, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed allegations in the Mo- tion for Summary Judgment disclose that the Region, by letter dated May 18, 1999, notified the Respondent that unless an answer were received by June 1, 1999, a Mo- tion for Summary Judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and place of business in New York, New York, has been engaged in the business of operating a private club and restaurant. During the calendar year preceding the issuance of the complaint, the Respondent, in the course and conduct of its business, derived gross revenues in excess of $500,000 and purchased and re- ceived goods valued in excess of $5000 directly from suppliers located outside the State of New York. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent, the unit, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All dining room, kitchen and bar employees employed by the Employer, excluding all other employees, pro- fessional employees, supervisors and guards as defined in the Act. Since about November 1, 1990, and at all material times, the Union has been the designated exclusive col- lective-bargaining representative of the unit and since that time the Union has been recognized as such repre- sentative by the Respondent. This recognition has been embodied in successive collective-bargaining agree- ments, the most recent of which was effective from No- vember 1, 1993, to October 31, 1995. At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. The parties’ 1993–1995 collective-bargaining agree- ment requires that the Respondent make contributions to the Hotel Employees and Restaurant Employees Interna- tional Union Welfare (and pension) Funds for the pur- pose of providing health and welfare (and pension) bene- fits, under the Hotel Employees and Restaurant Employ- ees International Union Welfare (and pension) Plans or such new merged or consolidated plan as may be adopted by the trustees. From on or about January 1, until about June 1, 1996, the Respondent failed and refused to make contributions to the Union’s insurance trust fund and the Union’s pension fund on behalf of the unit employees as required by the provisions of the 1993–1995 collective- bargaining agreement. These subjects relate to wages, hours, and other terms and conditions of the unit and are mandatory subjects for the purposes of collective bargaining. The Respondent engaged in the conduct described above without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has failed and refused and is failing and refusing to bargain collectively with the representative of its em- ployees, and has thereby engaged in unfair labor prac- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 tices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(1) and (5) of the Act by failing and refusing, since on or about January 1, and until about June 1, 1996, to make contributions to the Union’s insurance trust fund and the Union’s pension fund on behalf of the unit as required by the provisions of the 1993–1995 collective-bargaining agreement, we shall order the Respondent to make whole its unit employees by making all contractually required contributions to the Union’s insurance trust fund and the Union’s pension fund, including any additional amounts applicable to such delinquent payments as determined pursuant to Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall re- imburse unit employees for any expenses ensuing from its failure to make the required contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protec- tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987).1 ORDER The National Labor Relations Board orders that the Respondent, Le Club, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing, since on or about January 1, until about June 1, 1996, to make contributions to the Union’s insurance trust fund and the Union’s pension fund on behalf of the unit as required by the provisions of the 1993–1995 collective-bargaining agreement. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make the contractually required contributions to the Union’s insurance trust fund and the Union’s pension fund on behalf of the unit as required by the provisions of the 1993–1995 collective-bargaining agreement that were not made from about January 1, until about June 1, 1996, as set forth in the remedy section of this decision. 1 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the employer’s delin- quent contributions during the period of the delinquency, the respon- dent will reimburse the employee, but the amount of such reimburse- ment will constitute a setoff to the amount that the respondent other- wise owes the fund. (b) Make whole the unit employees for any loss of benefits or expenses ensuing from its failure to make the contractually required contributions to the funds from about January 1, until about June 1, 1996, as set forth in the remedy section of this decision. (c) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (d) Within 14 days after service by the Region, post at its facility in New York, New York, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since January 1, 1996. (e) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. October 15, 1999 John C. Truesdale Chairman Sarah M. Fox, Member J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 2 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” LE CLUB, INC. 3 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. WE WILL NOT fail and refuse to make contractually re- quired contributions to the Union’s insurance trust fund and the Union’s pension fund on behalf of our unit em- ployees. 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 make the contractually required contributions to the Union’s insurance trust fund and the Union’s pen- sion fund on behalf of our unit employees that were not made from about January 1, until about June 1, 1996. WE WILL make our unit employees whole for any loss of benefits or expenses ensuing from our failure, from about January 1, until about June 1, 1996, to make the contractually required contributions to the funds, pursu- ant to our 1993–1995 agreement with the Union, with interest. LE CLUB, INC.