Barca d'Oro

BARCA D'ORO 273 Janet Lacasey, a sole proprietor, d/b/a Barca d'Oro and Hotel and Restaurant Employees and Bar- tenders Union, Local 28, affiliated with Hotel and Restaurant Employees and Bartenders In- ternational Union. Case 32-CA-2340 August 15, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEILO Upon a charge filed on December 19, 1979, by Hotel and Restaurant Employees and Bartenders Union, Local 28, affiliated with Hotel and Restau- rant Employees and Bartenders International Union, herein called the Union, and duly served on Janet Lacasey, a sole proprietor, d/b/a Barca d'Oro, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 32, issued a com- plaint on January 29, 1980, against Respondent, al- leging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. The original charge was filed on December 19, 1979, by the Charging Party, and duly served on Respondent by registered mail on or about the same day. A first amended charge was sent to Re- spondent on January 24, 1980, by registered mail but was returned unclaimed. The Regional Direc- tor on January 29, 1980, issued a complaint and notice of hearing, which was received and signed for by an employee of Respondent. Subsequently, on March 10, 1980, Respondent was served in person with another copy of the charge, the first amended charge, and transmittal letters for the same. Personal service was felt necessary in view of Respondent's continued refusal to respond to the charges, or to file an answer to the complaint and notice of hearing. On April 22, 1980, counsel for the General Counsel contacted Respondent Janet Lacasey by telephone and explained the importance of filing an answer. Respondent Lacasey responded by stating that she saw no need to file an answer because there was money in an escrow account to pay off the Union. Respondent Lacasey concluded the con- versation by stating that she did not intend to file an answer. Although the Regional Director for Region 32, sua sponte, granted an extension of time until April 28, 1980, to file an answer, Respondent has not filed an answer to the complaint. On May 7, 1980, counsel for the General Coun- sel filed directly with the Board a motion for judg- 251 NLRB No. 36 ment on the pleadings. Subsequently, on May 14, 1980, 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. Respondent has not filed 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 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 National Labor Relations Board Rules and Regulations, Series 8, as amended, provides, inter alia: "All allegations in the com- plaint, if no answer is filed . . . shall be deemed to be admitted to be true and shall be so found by the Board." As set forth above, Respondent has not filed an answer to the complaint; the time within which to file having passed, we find all allegations in the complaint to be true. There being no issues in dispute, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a sole proprietorship, with an office and place of business in Oakland, California, has been engaged in the op- eration of a restaurant. During the past 12 months, Respondent, in the course and conduct of its busi- ness operations, derived gross revenues in excess of $500,000. During the past 12 months, Respondent, in the course and conduct of its business oper- ations, purchased and received goods or services valued in excess of $50,000, which originated from outside the State of California. We find, on the basis of the foregoing, that Re- spondent 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. II. THE LABOR ORGANIZATION INVOLVED Hotel and Restaurant Employees and Bartenders Union, Local 28, affiliated with Hotel and Restau- rant Employees and Bartenders International Union, is a labor organization within the meaning of Section 2(5) of the Act. BARCA DORO 273 I 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111. THE UNFAIR LABOR PRACTICES 1. The Employer and the Union are parties to a collective-bargaining agreement, effective from No- vember 23, 1976, until July 6, 1982, which pro- vides, inter alia, for the payment of moneys by the Employer into various fringe benefit funds estab- lished for the benefit of the unit employees. Since on or about November 1, 1979, and continuing to date, Respondent has unilaterally, and without notice to the Union, ceased making the fringe bene- fit payments required by the terms of the collec- tive-bargaining agreement mentioned above. Accordingly, we find that Respondent has, since November 1, 1979, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the unit employees, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 8(d) of the Act. 2. On or about November 16, 1979, Respondent, through Dagberto Bau, its Maitre d', impliedly threatened an employee with retaliation if that em- ployee invoked the assistance of the union repre- sentative in the matter of payments due to be paid into the fringe benefits program by Respondent. On the basis of the foregoing, we find that Re- spondent has restrained and coerced employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. IV. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 8(d) of the Act, we shall order that it cease and desist therefrom, and make all fringe benefit payments owed to the various fringe benefit funds as re- quired by the terms of the current collective-bar- gaining agreement with the Union as the exclusive representative of all employees in the appropriate unit. Having also found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), we shall order that it cease and desist from threatening employees with retaliation if the assistance of the union representa- tive is sought as the exclusive representative of all employees in the appropriate unit. In view of the events alleged to have occurred subsequent to the unfair labor practices dealt with herein, and to ensure that all unit employees are apprised of their Section 7 rights, we shall also order that Respondent send a copy of the notice to all employees at his or her home address who were on the payroll at the time the unfair labor practices were committed. See Cerro CA TV Devices, Inc., 237 NLRB 1153, 1154 (1978).' The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Janet Lacasey, a sole proprietor, d/b/a Barca d'Oro, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel and Restaurant Employees and Bartend- ers Union, Local 28, affiliated with Hotel and Res- taurant Employees and Bartendars International Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. Food servers, dishwashers, vegetable persons, porters, bar helpers, storekeepers, managers, head food servers, host persons, cashiers, and checkers employed by Respondent at its Oakland facility, excluding office clerical personnel, guards and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 23, 1976, by virtue of a col- lective-bargaining agreement with the above-named Employer, the above-named labor organization has been the exclusive representative of all the employ- ees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By ceasing on or about November 1, 1979, and at all times thereafter, to make the fringe bene- fit payments required by the collective-bargaining agreement with the above-named labor orgariiza- tion, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and Section 8(d) of the Act. ' In its Motion for Summary Judgment. counsel for the General Coun- sel alleges that, subsequent to the unfair labor practices dealt with in this Decision. Respondent sold its Oakland, California, facility. These allega- tions are not the subject of unfair labor practice charges by the Union, or a complaint by the Regional Director. HARCA D'ORO() 275 6. By impliedly threatening retaliation, through its agent, against one of its employees if the assist- ance of the Union was invoked, Respondent has in- terfered with, restrained, and coerced, and is inter- fering with, restraining, and coercing employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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, Janet Lacasey, a sole proprietor, d/b/a Barca d'Oro, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Hotel and Restaurant Employees and Bartenders Union, Local 28, affiliated with Hotel and Restaurant Em- ployees and Bartenders International Union, as the exclusive bargaining representative of its employees in the appropriate unit, by unilaterally, and without notice to the above-named labor organization, evading, breaching, subverting, or modifying the terms of the current collective-bargaining agree- ment between Janet Lacasey, a sole proprietor, d/ b/a Barca d'Oro, and the above-named labor orga- nization, and without making the fringe benefit payments as required under the terms of such col- lective-bargaining agreement. (b) Threatening employees with retaliation if the assistance of their union representative was sought regarding employee rights in the fringe benefit pro- grams, pursuant to the collective-bargaining agree- ment between the Employer and Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 all fringe benefit payments owed to the various fringe benefit funds as required by the terms of the current collective-bargaining agree- ment with the above-named labor organization. 2 2 Because the provisions of enplo) re henefit fund agreemenls are ari- able and complex, the Board does nol provlide at the adjudicator? stage of a proceeding for the addition of interest at a fixed rate on unltila full withheld fund payments \re leave Io the compliance stage the questi of the amounts Respondent must pay into the healh anlld s elfare pn (b) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the unit described below, with respect to any modification of rates of pay, wages, hours, or other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is: Food servers, dishwashers, vegetable persons, porters, bar helpers, storekeepers, managers, head food servers, host persons, cashiers, aind checkers employed by Respondent at its Oak- land facility, excluding office clerical person- nel, guards and supervisors as defined in the Act. (c) Forthwith mail a copy of the attached notice marked "Appendix" to each employee who was on its Oakland, California, payroll, at the time of the unfair labor practices herein found. Such notice is to be mailed to the last known home address of each employee. (d) Post at its principal office in Oakland. Cali- fornia, and at all its other places of business, copies of the attached notice marked "Appendix.": Copies of said notice, on forms provided by the Regional Director for Region 32. 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 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. and penilot plaill I order to aify our "make . lhole" tecdnlls hIt.c additisial amounls ma. he determnnlt. depeidiig lipo l the i,luri stance f each case. hs refercllir t prol,i ns iIl he dolcum lnt11 go 1-ri ing th fund and, f there are ro go, erning pros li l. l h ,\l l nl .' an! lioss directl tllrihbulahle t the unilasfut l kutl hhs h l gi ll 1ll. h l hil rilightl include the oss of return on il, estment of It portio it t nd, sslthheld. additiona.l adniiiiistral cis eltc i. bul t ol ltlt l I .s I Pangorlr & SonI. /tr. lnd Daid Cu rc/lI R .ihr ,: Bian ruilpi, 24S NLRi 45 (1IO) t11 tte CeTIt Illat this Order i eorce h5 .a Jidgleot . t llied Staes Cotlrt if Appeals, the ,.ords ill1 te oll . rcadilng '-siled h5 ()rder if tle National labor Relations litlrd' shll rea.d l-1, i FLlrru- ilt Iil a Judgntenl of the I iled Slate L oar of Appeals letorltng alt Order (of Ihe N;inonal I bher Relations oLod BARCA DOR() 275 276 DECISIONS OF 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 WII.. NOT refuse to bargain collectively with Hotel and Restaurant Employees and Bartenders Union, Local 28, affiliated with Hotel and Restaurant Employees and Bartend- ers International Union, as the exclusive repre- sentative of the employees in the bargaining unit described below by unilaterally, and with- out notice to the above-named Union, evading, breaching, subverting, or modifying the terms of our current collective-bargaining agreement with the above-named Union by not making required fringe benefit payments. WE Wlli NOT threaten our employees with retaliation if they seek the assistance of the Union, as the exclusive bargaining representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and payments due the various fringe benefit funds by Respondent, or any other terms or conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make all fringe benefit payments owed to the various fringe benefit funds as re- quired by the terms of our current collective- bargaining agreement with the above-named Union. WE WILL send to all our employees on the payroll at the time the unfair labor practices were committed, a copy of this notice at his or her home address. We will, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: Food servers, dishwashers, vegetable per- sons, porters, bar helpers, storekeepers, man- agers, head food servers, host persons, cash- iers, and checkers at our Oakland facility, excluding office clerical personnel, guards and supervisors as defined in the Act. JANET LACASEY, A SOLE PROPRIETOR, D/B/A BARCA D'ORo