Bookbinder's Seafood House

National Labor Relations Board - Board Decisions

Jan 26, 2004

341 N.L.R.B. 14 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14

Bookbinder’s Seafood House, Inc. and Hotel Employ-
ees and Restaurant Employees International Un-
ion, Local 274, AFL–CIO. Cases 4–CA–30900,
4–CA–32360, 4–CA–32395, and 4–CA–32396
January 26, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the consolidated complaint (complaint).
Based on charges filed by Hotel Employees and Restau-
rant Employees International Union, Local 274, AFL–
CIO (the Union) on December 5, 2001, and August 13
and August 29, 2003, the General Counsel issued the
complaint on October 30, 2003, against Bookbinder’s
Seafood House, Inc., the Respondent, alleging that it has
violated Section 8(a)(1) and (5) of the Act. The Respon-
dent failed to file an answer.
On November 25, 2003, the General Counsel filed a
Motion for Default Judgment with the Board. On De-
cember 5, 2003, the Board issued an order transferring
the proceeding 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
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. In addition, the complaint affirmatively stated
that unless an answer was filed by November 13, 2003,
all the allegations in the complaint would be considered
true. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter
dated November 13, 2003, notified the Respondent that
unless an answer was received by November 20, 2003, a
motion for default 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 Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Pennsylvania
corporation, has been engaged in the operation of a res-
taurant at 215 South 15th Street, Philadelphia, Pennsyl-
vania (the Restaurant). During the 12-month period pre-
ceding issuance of the complaint, the Respondent, in
conducting its business operations described above, re-
ceived gross revenues in excess of $500,000 and pur-
chased and received at the Restaurant goods valued in
excess of $5000 directly from points outside the Com-
monwealth of Pennsylvania. We find that the Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
Hotel Employees and Restaurant Employees Interna-
tional Union, Local 274, AFL–CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Until about June 1, 1997, Local Union #301, AFL–
CIO, of the Hotel Employees and Restaurant Employees
and Bartenders International Union (Local 301) was a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Richard Bookbinder, Ann Sulli-
van, and Archie Edwards held positions as the Respon-
dent’s vice president, accounting manager, and head
chef, respectively, and have been supervisors of the Re-
spondent within the meaning of Section 2(11) of the Act
and agents of the Respondent within the meaning of Sec-
tion 2(13) of the Act.
The following employees of the Respondent (Back of
the House unit and Front of the House unit, respectively)
have constituted units appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:

Back of the House Unit
All full-time and regular part-time cooks, pantry em-
ployees, dishwashers, oyster bar employees and bar-
tenders employed at the Restaurant.

Front of the House Unit
All full-time and regular part-time waiters, waitresses,
busboys, hostesses and cashiers employed at the Res-
taurant.

At all material times, the Respondent has recognized
the Union as the exclusive collective-bargaining repre-
sentative of the Back of the House unit. This recognition
has been embodied in successive collective-bargaining
agreements, the most recent of which (the Back of the
House Agreement), was effective by its terms from No-
vember 1, 1995 to November 7, 1998. The Back of the
House Agreement was extended until November 7, 2001.
At all material times, until about June 1, 1997, the Re-
spondent recognized Local 301 as the exclusive collec-
tive-bargaining representative of the Front of the House
341 NLRB No. 7
BOOKBINDER’S SEAFOOD HOUSE, INC. 15
unit. This recognition was embodied in a collective-
bargaining agreement between the Respondent and Local
301 (the Front of the House Agreement), effective by its
terms from January 2, 1996 through January 2, 2000. On
about June 1, 1997, the Union succeeded Local 301 as
the exclusive collective-bargaining representative of the
Front of the House unit, and was so recognized by the
Respondent on that date.
At all material times, since at least November 1, 1995,
based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the
Back of the House unit.
At all material times, since at least June 1, 1997, based
on Section 9(a) of the Act, the Union has been the exclu-
sive collective-bargaining representative of the Front of
the House unit.
During the period between June 6, 2001 and April 16,
2002, the Respondent failed and refused to make welfare
and pension contributions to funds set forth in article
XIX of the Back of the House Agreement.
On about the dates set forth opposite their respective
names, the Respondent, by Richard Bookbinder, Ann
Sullivan, and Archie Edwards, bypassed the Union and
dealt directly with Back of the House unit employees, by
advising the employees that the Respondent was seeking
to change their health insurance coverage or provider and
by presenting them with forms and documents for signa-
ture so that the Respondent could effect this change:

Richard Bookbinder August 8, 2003
Ann Sullivan Late July or early August, 2003
Archie Edwards August 15, 2003

The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the Back of
the House unit and are mandatory subjects for the pur-
pose of collective bargaining.
By failing and refusing to make the welfare and pen-
sion contributions described above during the period
prior to November 7, 2001, the Respondent failed and
refused to continue in effect article XIX of the Back of
the House Agreement.
The Respondent failed and refused to make welfare
and pension contributions to the funds between June 6,
2001 and April 16, 2002, without prior notice to the Un-
ion and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct.
Further, the Respondent failed and refused to make the
welfare and pension contributions between June 6 and
November 7, 2001, without the Union’s consent.
On about July 23, 2003, the Union, by letter, requested
that the Respondent furnish it with the following infor-
mation:

1. A complete and accurate list of all employees,
whose jobs are included in the jobs represented by
Local 274, including full name, address, phone
number, social security number, date of hire, rate of
pay, and last increase date and amount.
2. A complete and accurate list of any and all
health and welfare payments made by the employer
in calendar year 2003 for any employee.
3. A complete and accurate Summary Plan De-
scription for any health and welfare plan that the
employer has in effect for any employee at your
work location.
4. An Hours Report, showing the hours worked
by individual for the last six (6) weeks.
5. A copy of your Workers’ Compensation Pol-
icy, including information on who your agent is and
the carrier that you use.

With the exception of employee social security num-
bers, the information requested by the Union is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the employees in the two units.1 Since about July 23,
2003, the Respondent has failed and refused to furnish
the Union with the information requested by it.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively with
the exclusive collective-bargaining representative of its
employees within the meaning of Section 8(d) of the Act,
and has thereby engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) 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 and refusing between June 6, 2001 and
April 16, 2002 to make welfare and pension contribu-
tions to funds set forth in article XIX of the Back of the
House Agreement, we shall order the Respondent to

1 The Board has held that social security numbers are not presump-
tively relevant. Accordingly, in the absence of a showing here of their
potential or probable relevance, we deny the Motion for Summary
Judgment with respect to the failure to provide social security numbers,
and remand that issue to the Regional Director for further appropriate
action. See American Gem Sprinkler Co., 316 NLRB 102, 104 fn. 7
(1995); Turner-Brooks of Ohio, 310 NLRB 856, 857 fn.2 (1993), enfd.
mem. 9 F.3d 108 (6th Cir. 1993); and Sea-Jet Trucking Corp., 304
NLRB 67 (1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
honor the terms and conditions of the agreement, until a
new agreement or good-faith impasse in negotiations is
reached, and to make whole the Back of the House unit
employees for any loss of earnings and other benefits
they may have suffered as a result of the Respondent’s
unlawful conduct.
Further, we shall order the Respondent to make all re-
quired welfare and pension contributions that were not
made on behalf of the Back of the House unit employees
between June 6, 2001 and April 16, 2002, including any
additional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).2 The Respondent shall also be required to reim-
burse the 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), affd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir, 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, we shall require the Respondent to furnish
the Union with the information it requested on July 23,
2003, with the exception of employees’ social security
numbers.
ORDER
The National Labor Relations Board orders that the
Respondent, Bookbinder’s Seafood House, Inc., Phila-
delphia, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unilaterally ceasing to make welfare and pension
contributions on behalf of employees in the Back of the
House unit described below to funds set forth in article
XIX of the November 1, 1995–November 7, 1998 collec-
tive-bargaining agreement between the Respondent and
Hotel Employees and Restaurant Employees Interna-
tional Union, Local 274, AFL–CIO, which was extended
until November 7, 2001.
(b) Bypassing the Union and dealing directly with em-
ployees in the Back of the House unit by advising the
employees that the Respondent was seeking to change
their health insurance coverage or provider and by pre-
senting them with forms and documents for signature so
that the Respondent could effect this change.

2 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s delin-
quent contributions during the period of delinquency, the Respondent
will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
(c) Failing to furnish the Union with information that
is relevant and necessary to the Union’s performance of
its duties as the exclusive collective-bargaining represen-
tative of the employees in the following appropriate
units:

Back of the House Unit
All full-time and regular part-time cooks, pantry em-
ployees, dishwashers, oyster bar employees and bar-
tenders employed at the Restaurant.
Front of the House Unit
All full-time and regular part-time waiters, waitresses,
busboys, hostesses and cashiers employed at the Res-
taurant.

(d) 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) Honor the terms and conditions of the November 1,
1995–November 7, 1998 collective-bargaining agree-
ment, which was extended until November 7, 2001, until
a new agreement or good-faith impasse in negotiations is
reached, and make whole the Back of the House unit
employees, with interest, for any loss of earnings and
other benefits they may have suffered as a result of the
Respondent’s failure and refusal to make welfare and
pension contributions to funds set forth in article XIX of
the agreement between June 6, 2001 and April 16, 2002,
in the manner set forth in the remedy section of this deci-
sion.
(b) Make all required welfare and pension contribu-
tions to funds set forth in article XIX of the agreement
that were not made between June 6, 2001 and April 16,
2002, and reimburse the unit employees for any expenses
resulting from its failure to make the required contribu-
tions, with interest, in the manner set forth in the remedy
section of this decision.
(c) Furnish the Union with the information requested
in its letter dated July 23, 2003, with the exception of
employees’ social security numbers.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Philadelphia, Pennsylvania, copies of the
BOOKBINDER’S SEAFOOD HOUSE, INC. 17
attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s author-
ized 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 this proceeding, 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 June 6, 2001.
(f) 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 com-
ply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT unilaterally cease making welfare and
pension contributions on behalf of employees in the Back
of the House unit described below to funds set forth in
article XIX of the November 1, 1995–November 7, 1998

3 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.”
collective-bargaining agreement between us and Hotel
Employees and Restaurant Employees International Un-
ion, Local 274, AFL–CIO, which was extended until
November 7, 2001.
WE WILL NOT bypass the Union and deal directly with
employees in the Back of the House unit by advising the
employees that we were seeking to change their health
insurance coverage or provider and by presenting them
with forms and documents for signature so that we could
effect this change.
WE WILL NOT fail and refuse to furnish the Union with
information that it necessary for, and relevant to, the Un-
ion’s performance of its duties as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate units:

Back of the House Unit
All full-time and regular part-time cooks, pantry em-
ployees, dishwashers, oyster bar employees and bar-
tenders employed at the Restaurant.
Front of the House Unit
All full-time and regular part-time waiters, waitresses,
busboys, hostesses and cashiers employed at the Res-
taurant.

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 honor the terms and conditions of the No-
vember 1, 1995–November 7, 1998 collective-bargaining
agreement, which was extended until November 7, 2001,
until a new agreement or good faith impasse in negotia-
tions is reached, and WE WILL make whole the Back of
the House unit employees, with interest, for any loss of
earnings and other benefits they may have suffered as a
result of our failure and refusal to make welfare and pen-
sion contributions to funds set forth in article XIX of the
agreement between June 6, 2001 and April 16, 2002.
WE WILL make all required welfare and pension con-
tributions to funds set forth in article XIX of the agree-
ment that were not made between June 6, 2001 and April
16, 2002, and WE WILL reimburse the unit employees for
any expenses resulting from our failure to make the re-
quired contributions, with interest.
WE WILL furnish the Union with the information re-
quested in its letter dated July 23, 2003, with the excep-
tion of employees’ social security numbers.
BOOKBINDER’S SEAFOOD HOUSE, INC.