Gannon'S Restaurant

812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pavco, Inc. d/b/a Gannon's Restaurant and Hotel Employees and Restaurant Employees Interna- tional Union, Local No. 17, AFL-CIO. Cases 18-CA-9918 and 18-CA-10167 April 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT The Union filed a charge in Case 18-CA-9918 on January 16, 1987, 1 alleging that Gannon's Res- taurant, the Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act by re- fusing to recognize and bargain with the Union. On March 19, the Regional Director for Region 18 ap- proved a settlement agreement in Case 18-CA- 9918. Upon a charge filed by the Union on August 4, the General Counsel of the National Labor Rela- tions Board issued a complaint in Case 18-CA- 10167 on September 3 against the Respondent, al- leging that it violated Section 8(a)(5) and (1) of the National Labor Relations Act by unilaterally dis- continuing its health insurance coverage for its em- ployees about the first week of July. The Respond- ent sent a letter to the Regional Office postmarked September 20, which was accepted by the Regional Director as the Respondent's answer to the com- plaint. On October 1, the Regional Director issued an order revoking approval of and vacating and set- ting aside the settlement agreement in Case 18- CA-9918. On the same date the Regional Director issued an order consolidating cases, an amended and consolidated complaint, and notice of hearing and order rescheduling hearing in Cases 18-CA- 9918 and 18-CA-10167. The amended and consoli- dated complaint alleges that the Respondent violat- ed the Act by unilaterally discontinuing health in- surance coverage for unit employees in early July; by interrogating its employees regarding their union membership and sympathies; and by refusing to recognize and bargain with the Union from Jan- uary 6 to mid-April and from early July to date. The Respondent did not file an answer to the amended and consolidated complaint. By letters dated October 5, 7, and 15, and in conversations on October 5 and 14, the General Counsel advised the Respondent that summary judgment would be sought if the Respondent did not file an answer by October 19. The Respondent failed to file an answer to the amended and consolidated com- plaint. All dates are 1987 unless indicated otherwise. On October 23, the General Counsel filed a Motion for Summary Judgment. On October 30, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for \Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides 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. The amended and con- solidated complaint states that unless an answer is filed within 14 days of service, "all the allegations in the Amended and Consolidated Complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, the undisputed alle- gations in the Motion for Summary Judgment dis- close that the General Counsel, by letters dated October 5, 7, and 15, and in telephone conversa- tions on October 5 and 14, notified the Respondent that unless an answer was received immediately, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Summary Judg- ment.2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, a Minnesota corporation, is en- gaged in the operation of a restaurant selling food and liquor to the consuming public at its facility in St. Paul, Minnesota. Based on a projection of its operations since December 22, 1986, at which time the Respondent commenced its operations, the Re- spondent will annually derive gross revenues in 2 In so finding, we are mindful that the Respondent filed an answer to the complaint in Case 18-CA-10167. That answer, however, does not warrant denial of the General Counsel's Motion for Summary Judgment on the amended and consolidated complaint issued on October 1 Inas- much as the amended and consolidated complaint contains the additional allegations that the Respondent is a successor employer which unlawfully refused to recognize and bargain with the Union on certain dates and un- lawfully interrogated its employees regarding their union membership and sympathies. Oldwich Materials, 264 NLRB 1152 (1982); cf Auburn Co. 282 NLRB 1044 (1987). (The Company's answer to the original complaint satisfied its obligation to answer the amended complaint where the amended complaint contains the same substantive allegations as the original complaint.) 288 NLRB No. 91 GANNON'S RESTAURANT 813 excess of $500,000. Based on its operations since December 22, 1986, the Respondent will annually purchase and receive at its St. Paul, Minnesota fa- cility products, goods, and materials valued in excess of $10,000 directly from other enterprises lo- cated inside the State of Minnesota, each of which other enterprises will have received the products, goods, and materials directly from points outside the State of Minnesota. We find that the Respond- ent is an employer engaged in commerce within the meaning of Section 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 Since 1955 the Union has been the designated ex- clusive collective-bargaining representative of the employees in the appropriate unit 3 and recognized as such by the Respondent's predecessor. Such rec- ognition was embodied in successive collective-bar- gaining agreements, the most recent of which was effective by its terms from October 1, 1983, to Sep- tember 30, 1985. From 1955 until December 20, 1986, the Union, by virtue of Section 9(a) of the Act, was the exclusive collective-bargaining repre- sentative of the unit employees. On December 22, 1986, the Respondent purchased Gannon's Restau- rant, has continued to operate the same business providing essentially the same services to substan- tially the same customers, and had, at all times ma- terial, as a majority of its employees, individuals who were previously employees of Gannon's Inc. The Respondent is therefore a successor of Gan- non's Inc. On dates between January 6 and February 13 the Respondent, acting through John Pavlick, presi- dent; Jerry Nevermann, kitchen supervisor; and Michelle Berthiaume, hostess, all supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act, interrogated employees regarding their union sympathies and membership. By letter to the Respondent dated January 6 the Union requested the Respondent to bargain collec- tively with it as the exclusive representative of the employees in the unit with respect to their wages, rates of pay, hours of employment, and other terms and conditions of employment. From January 6 to 3 The following employees of the Respondent constitute a unit appro- pnate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act: All full-time and regular part-time waiters and waitresses, cooks, bar- tenders, dishwashers-kitchen help, bus help, salad prep employees and Janitors employed at its 2728 Gannon Road, St. Paul, Minnesota restaurant facility, excluding all other employees, guards and super- visors as defined in the Act mid-April the Respondent refused to recognize and bargain with the Union notwithstanding that the Respondent was a successor employer. In early July the Respondent unilaterally and without prior notice to or bargaining with the Union discontin- ued health insurance coverage for employees in the unit. From early July to date, the Respondent has failed and refused to meet and bargain in good faith with the Union with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On March 12 the Respondent entered into a set- tlement agreement in Case 18-CA-9918 which was approved by the Regional Director providing, inter alia, that the Respondent would not interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act; that the Respondent would recognize and bargain in good faith with the Union; and that the Respond- ent would embody' in a signed agreement any un- derstanding reached. The Respondent subsequently violated the terms of this agreement by unilaterally and without prior notice to or bargaining with the Union discontinuing health insurance coverage for unit employees and by refusing to meet and bargain in good faith with the Union. By these actions, the Respondent nullified and failed and refused to give force and effect to an essential provision of the set- tlement agreement. The Regional Director so found and on October 1 revoked approval of the agreement, vacated it, set it aside, and issued the amended and consolidated complaint at issue here. On the basis of the foregoing, we find that the Respondent interrogated its employees in violation of Section 8(a)(1) of the Act. We further find that the Respondent is a successor of Gannon's Inc., that the Union is the exclusive collective-bargain- ing representative of the Respondent's employees by virtue of Section 9(a), and that the Respondent therefore violated Section 8(a)(5) by failing and re- fusing to recognize and bargain with the Union from January 6 to mid-April and from early July to date and by unilaterally and without prior notice to the Union discontinuing the health insurance cov- erage for the employees in the unit in early July. See generally NLRB v. Burns Security Services, 406 U.S. 272 (1972). By the same acts, the Respondent has interfered with, restrained, and coerced em- ployees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. By refusing on or after January 6 until mid- April and from early July to the present to recog- nize or bargain with the Union as the exclusive col- 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lective-bargaining representative of the employees in the appropriate unit, and by unilaterally discon- tinuing health insurance coverage for unit employ- ees without prior notice to or bargaining with the Union; the Respondent, a successor employer, has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. By interrogating employees regarding their union sympathies and their membership in the Union, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent engaged in certain 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. Having found that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. We shall further order that the Respondent make whole the employees in the unit by making the payments necessary to restore their health insur- ance coverage which was unlawfully discontinued in early July. Any interest applicable to such pay- ments shall be paid in accordance with the criteria set forth in Menyweather Optical Co., 240 NLRB 1213 (1979). We shall order that the Respondent provide such health insurance coverage until it ne- gotiates in good faith to a new agreement or to im- passe. The Respondent shall also reimburse its em- ployees for any expenses ensuing from its failure to provide the health insurance coverage. Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). 4 All such sums shall be paid with interest to be computed in the manner prescribed in New Horizons for the Re- tarded.5 ORDER The National Labor Relations Board orders that the Respondent, Pavco, Inc. d/b/a Gannon's Res- 4 The General Counsel's request for a visitatorial clause is denied. See Cherokee Marine Terminal, 287 NLRB 1080 (1988). 5 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). taurant, St. Paul, Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Hotel Employees and Restaurant Employees International Union, Local No. 17, AFL-CIO as the exclusive bargain- ing representative of the employees in the bargain- ing unit. (b) Unilaterally discontinuing health insurance coverage for the employees in the unit. (c) Unlawfully interrogating employees about their union membership and sympathies. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain in good faith with the Union as the exclusive representative of the em- ployees in the following appropriate unit on terms and conditions of employment and, if an under- standing is reached, embody the understanding in a ' signed agreement: All full-time and regular part-time waiters and waitresses, cooks, bartenders, dishwashers- kitchen help, bus help, salad prep employees and janitors employed at its 2728 Gannon Road, St. Paul, Minnesota restaurant facility; excluding all other employees, guards and su- pervisors as defined in the Act. (b) Make its employees whole by making the payments necessary to restore the health insurance coverage for unit employees which would have ex- isted absent the Respondent's unlawful unilateral discontinuance of the coverage and continue to provide for such coverage until the Respondent ne- gotiates in good faith to a new agreement or to im- passe. (c) Make its employees whole by reimbursing them for any expenses ensuing from the Respond- ent's unlawful failure to provide the health insur- ance coverage in the manner set forth in the remedy section of the decision. (d) Post at its facility in St. Paul, Minnesota, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by Re- gional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 6 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 Nation- al 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." GANNON'S RESTAURANT 815 upon receipt 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 altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 refuse to bargain with Hotel Em- ployees and Restaurant Employees International Union, Local No. 17, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit. WE WILL NOT unilaterally discontinue health in- surance coverage for the employees in the unit. WE WILL NOT interrogate you about your union membership and sympathies. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time waiters and waitresses, cooks, bartenders, dishwashers- kitchen help, bus help, salad prep employees and janitors employed at our 2728 Gannon Road, St. Paul, Minnesota restaurant facility; excluding all other employees, guards and su- pervisors as defined in the Act. WE WILL make our employees whole by making the payments necessary to restore health insurance coverage which would have existed absent our un- lawful unilateral discontinuance of the coverage, and WE WILL continue to provide for such cover- age until we negotiate in good faith to a new col- lective-bargaining agreement or to impasse. WE WILL make our employees whole by reim- bursing them for any expenses ensuing from our failure to provide the health insurance coverage and such sums shall be paid with interest. PAVCO, INC. D/B/A GANNON'S RES- TAURANT