Aperitivo

National Labor Relations Board - Board Decisions

Nov 30, 2000

332 N.L.R.B. 1310 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1310
Aperitivo Restaurant, Inc. d/b/a Aperitivo and Local
100, Hotel Employees and Restaurant Employ-
ees International Union, AFL–CIO. Case 2–CA–
32774
November 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
Upon a charge filed by the Union on February 8, 2000,
and amended charges filed by the Union on May 2 and
July 5, 2000, the General Counsel of the National Labor
Relations Board issued a complaint on July 27, 2000,
against Aperitivo Restaurant, Inc. d/b/a Aperitivo, 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 charges and complaint, the
Respondent failed to file an answer.
On October 30, 2000, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On October
31, 2000, the Board issued an order transferring the pro-
ceeding 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 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 September 20, 2000, notified the Respondent
that unless an answer were received by September 29,
2000, a Motion 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, with a principal
place of business located at 321 West 44th Street, New
York, New York, has been engaged in the operation of a
restaurant. Annually, in the course and conduct of its
business operations described above, the Respondent
derives gross revenues in excess of $500,000, and pur-
chases and receives at its restaurant goods and services
valued in excess of $5000, which originate from points
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
At all material times, Luciano Diminich has held the
position of the Respondent’s owner and has been a su-
pervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and an agent of the Respondent
acting on its behalf.
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9(b) of the Act:

Included: All full time and regular part-time dining
room, kitchen and bar employees.

Excluded: All other employees, including office cleri-
cal employees, guards, professional employees and su-
pervisors as defined in the Act.

Since in or around 1990, the Union and the Respon-
dent have been parties to a series of collective-bargaining
agreements, the most recent of which was effective by its
terms from September 1, 1996, through August 31, 1999.
At all material times, the Union, by virtue of Section
9(a) of the Act, has been the exclusive representative of
the unit set forth above for purposes of collective bar-
gaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment.
In or around October 1999, the exact date being cur-
rently unknown to the General Counsel, the Respondent
closed its restaurant, resulting in the permanent layoff of
all of the employees in the unit described above. On or
November 12, 1999, the Union, by letter to the Respon-
dent, requested to bargain with the Respondent regarding
the effects of the closing of the restaurant. Since on or
about November 12, 1999, the Respondent has failed and
refused to respond to the Union’s request to bargain.
The Respondent closed its restaurant and permanently
laid off all its unit employees without prior notice to the
Union and without affording the Union an opportunity to
bargain with the Respondent with respect to the effects
of this conduct on the wages, hours, and working condi-
tions of the unit employees.
332 NLRB No. 135
APERITIVO

1311
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the representative of its employees, and
has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5),
and Section 2(6) and (7) of the Act.
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)(5)
and (1) by failing to bargain with the Union concerning
the effects on the unit employees of the closing of the
Respondent’s restaurant, we shall order the Respondent,
on request, to bargain with the Union concerning the
effects of the decision to close. In addition, we shall
accompany our bargaining order with a limited backpay
requirement designed both to make whole the employees
for losses they may have suffered as a result of the failure
to bargain about such effects and to recreate in some
practicable manner a situation in which the parties’ bar-
gaining position is not entirely devoid of economic con-
sequences for the Respondent. We shall do so by order-
ing the Respondent to pay backpay to employees in a
manner similar to that required in Transmarine Naviga-
tion Corp., 170 NLRB 389 (1968).1 Backpay shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Aperitivo Restaurant, Inc. d/b/a Aperitivo,
New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Local 100, Hotel Employees and Restaurant Employees
International Union, AFL–CIO as the exclusive represen-
tative of the employees in the bargaining unit set forth

1 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
In Transmarine, the Board ordered an employer that had unlawfully
refused to bargain over the effects of its plant closure decision to, inter
alia, pay unit employees at their normal rate of pay beginning 5 days
after the Board’s decision until the first of four events: (1) an effects
bargaining agreement was reached; (2) a bona fide bargaining impasse
was reached; (3) the union failed to timely request or commence bar-
gaining; or (4) the union failed to bargain in good faith. Id. The Board
further specified that “in no event shall this sum be less than these
employees would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ.” Id.
below by refusing to bargain with the Union concerning
the effects on the unit employees of the Respondent’s
closing of its restaurant at 321 West 44th Street, New
York, New York, and the termination of the unit em-
ployees.

Included: All full time and regular part-time dining
room, kitchen and bar employees.

Excluded: All other employees, including office cleri-
cal employees, guards, professional employees and su-
pervisors as defined in the Act.

(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) On request, bargain with the Union concerning the
effects on the unit employees of the closing of the Re-
spondent’s restaurant at 321 West 44th Street, New
York, New York, and the resulting termination of the
unit employees.
(b) Pay the former employees in the unit described
above their normal wages when in the Respondent’s em-
ploy from 5 days after the date of this decision until the
occurrence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement with the
Union on those subjects pertaining to the effects of the
closing of its restaurant at 321 West 44th Street, New
York, New York, and its termination of the unit employ-
ees; (2) the date a bona fide impasse in bargaining oc-
curs; (3) the failure of the Union to request bargaining
within 5 business days after receipt of this decision, or to
commence negotiations within 5 business days after re-
ceipt of the Respondent’s notice of its desire to bargain
with the Union;2 or (4) the subsequent failure of the Un-
ion to bargain in good faith; but in no event shall the sum
paid to any of the employees exceed the amount he or
she would have earned as wages from the date in or
about October 1999, when the Respondent closed its
restaurant, to the time he or she secured equivalent em-
ployment elsewhere, or the date on which the Respon-
dent shall have offered to bargain in good faith, which-
ever occurs sooner; provided, however, that in no event
shall this sum be less than these employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondent’s employ, with inter-
est, as set forth in the remedy portion of this decision.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
2 Melody Toyota, 325 NLRB 846 (1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1312
copying, all payroll records, social security payment re-
cords, 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, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”3 to all former
employees who were employed by the Respondent when
the restaurant was closed in or about October 1999.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
mail and abide by this notice.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

WE WILL NOT fail and refuse to bargain in good
faith with Local 100, Hotel Employees and Restaurant
Employees International Union, AFL–CIO as the exclu-
sive representative of the employees in the bargaining
unit set forth below by refusing to bargain with the Un-
ion concerning the effects on the unit employees of our
closing of our restaurant at 321 West 44th Street, New
York, New York, and the resulting termination of the
unit employees.

Included: All full time and regular part-time dining
room, kitchen and bar employees.

Excluded: All other employees, including office cleri-
cal employees, guards, professional employees and su-
pervisors as defined in the Act.

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, on request, bargain with the Union con-
cerning the effects on the unit employees of the closing
of our restaurant at 321 West 44th Street, New York,
New York, and the resulting termination of the unit em-
ployees.
WE WILL pay limited backpay to the unit employees
in connection with our failure to bargain with the Union
over the effects of our closing of the restaurant.

APERITIVO RESTAURANT, INC. d/b/a APERITIVO