Scotch & Sirloin Restaurant; J&F Enterprises, Inc.

408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD M.B.K., Inc. d/b/a Scotch & Sirloin Restaurant; J&F Enterprises, Inc. and Culinary Alliance & Bartenders Local No. 498, Hotel and Restau- rant Employees and Bartenders International Alliance, AFL-CIO. Cases 31-CA-11628 and 31-CA-11796 May 31, 1989 SECOND SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRAcRAFr On March 28, 1984, the National Labor Rela- tions Board issued a Decision, Order, and Direc- tion of Second Election in this proceeding,' in which the Board, inter alia, ordered the Respond- ent, M.B.K., Inc. d/b/a Scotch & Sirloin Restau- rant (M.B.K.), to make whole certain employees for any loss of earnings suffered as a result of the Respondent's unfair labor practices. On June 13, 1985, the United States Court of Appeals for the Ninth Circuit entered a judgment enforcing the Board's Order.2 A controversy having arisen over the amount of backpay due under the Board's Order, as enforced by the court, the Acting Re- gional Director for Region 31 issued and duly served on the Respondents, M.B.K. and J&F En- terprises, Inc. (J&F), a backpay, and an amended backpay specification and notice of hearing alleg- ing the amounts of backpay due the discriminatees and notifying the Respondents that they must file a timely answer complying with the Board's Rules and Regulations. On September 12, 1985, the Re- spondents M.B.K. and J&F filed a joint answer to the amended backpay specification. On October 1, 1985, the General Counsel filed directly with the Board a "Motion to Transfer Case to and Continue Proceedings Before the Board, to Strike Respondent's [sic] Answer, and for Summary Judgment," with exhibits attached. The General Counsel alleged that the Respondents' answer failed to conform to the requirements of Section 102.54(b) and (c) of the Board's Rules and Regulations. On October 3, 1985, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted. The Respondents failed to file a response. Thereafter, on November 19, 1985, the General Counsel filed with the Board a supplemental motion amending the motion for summary judgment, which described the various manners of service on the Respondents, e.g., on ' 269 NLRB 436. $ Unpublished. their attorney and at their mutual principal place of business, and contended that sufficient service had been made. On November 21, 1985, the General Counsel filed a corrected copy of the supplemental motion, which corrected typographical errors. On March 11, 1986, the General Counsel filed a second cor- rected copy of the supplemental motion with ex- hibits attached, which were inadvertently omitted from the November 21, 1985 copy of the supple- mental motion. On March 27, 1986, the Respondents' counsel filed an opposition to Motion for Summary Judg- ment with a declaration attached. On February 29, 1988, the Board issued a Sup- plemental Decision and Order Remanding in this proceeding.3 In the Order, the Board struck por- tions of the Respondents' answer, and granted sum- mary judgment as to all allegations of the amended backpay specification except for those concerning the alleged single-employer status of Respondents M.B.K. and J&F. The Board remanded the case to the Regional Director for the sole purpose of issu- ing a notice of hearing to determine the alleged single-employer status of Respondents M.B.K. and J&F. On October 25, 1988, pursuant to the Board's Order, the Regional Director issued an order reset- ting hearing. Subsequent to the issuance of the order resetting hearing, but prior to the commence- ment of the hearing, after supplemental investiga- tion, the Regional Director concluded that Re- spondent J&F is not a functioning entity, has no assets, and has no ability or capacity to provide a monetary remedy for any of the unfair labor prac- tices found by the Board. Accordingly , the Region- al Director administratively postponed the hearing indefinitely. By letter dated December 20, 1988, the General Counsel notified the Charging Party of the Re- gion's intention to delete all references to Respond- ent J&F from the specification, and apprised the Charging Party of its appeal rights . The Charging Party has not appealed, nor made any objection to, the proposed deletion of Respondent J&F from the specification. On March 15, 1989, the General Counsel filed directly with the Board a "Motion to Transfer Case to and Continue Proceedings Before the Board, to Delete Respondent J&F Enterprises, Inc. from the Specification, and for Make-Whole Order," with exhibits attached. The General Coun- sel moves that: (1) all reference to Respondent J&F and all reference to the alleged single-employer s 287 NLRB 1318. 294 NLRB No. 28 SCOTCH & SIRLOIN RESTAURANT status of Respondents M.B.K. and J&F be deleted from the backpay specification ; and (2) a make- whole order be issued providing the appropriate predicate for enforcement and other proceedings as warranted. On March 22, 1989, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's motion should not be granted . The Respondent and the Charging Party failed to file a response . The al- legations in the motion therefore are undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record , the Board makes the fol- lowing findings . Based on the uncontroverted alle- gations in the General Counsel's motion to which no response has been filed , we shall delete all refer- ences to Respondent J&F and to the alleged single- employer status of Respondents M.B.K. and J&F from the amended specification. Further , we con- clude that the net backpay due the discriminatees is as stated in the amended backpay specification and we will order payment by the Respondent M.B.K. to the discriminatees. ORDER 409 It is ordered that all reference to Respondent J&F Enterprises, Inc., and all reference to the al- leged single-employer status of Respondents M.B.K., Inc . d/b/a Scotch & Sirloin Restaurant and J&F Enterprises, Inc., as set forth in the cap- tion and in paragraph 10 of the amended specifica- tion, be deleted from the amended specification. IT IS FURTHER ORDERED that the Respondent M.B.K., Inc . d/b/a Scotch & Sirloin Restaurant, Ventura, California, its officers, agents, successors, and assigns, shall make whole the discriminatees named below by paying them the amounts follow- ing their names, plus interest accrued to the date of payment as prescribed in New Horizons for the Re- tarded,4 minus tax withholdings required by Feder- al and state laws: Sandra (Sargent) Hance $24,291.54 Larry Flaitz 47,824.36 D. Wesley Replogle 65,206.80 4 283 NLRB 1173 (1987)