Colony Club of Dayton, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1976

225 N.L.R.B. 1211 (N.L.R.B. 1976)

COLONY CLUB OF DAYTON, INC. 1211
Colony Club of Dayton , Inc. and Bartenders , Motel,
Hotel and Restaurant Workers, Local Union No.
222, Hotel and Restaurant Employees and Bartend-
ers International Union , AFL-CIO. Case 9-CA-
10104
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:
September 8, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a charge filed on February 27, 1976, by Bar-
tenders, Motel, Hotel and Restaurant Workers, Lo-
cal Union No . 222, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO,
herein called the Union , and duly served on Colony
Club of Dayton, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board , by the Regional Director for Region 9, issued
a complaint and notice of hearing on April 26, 1976,
against Respondent , alleging that Respondent had
engaged in and was engaging in unfair labor practic-
es affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended . Copies of
the charge , complaint , and notice of hearing before
an Administrative Law Judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices , the com-
plaint alleges in substance that on or about October
14, 1975, Respondent ( 1) told an employee that she
or he was being fired because she or he had associat-
ed with a business agent for the Union and (2) dis-
criminatorily discharged employee Mariann Allen
because of her sympathies for, membership in, and
activities on behalf of the Union . The Respondent
did not file an answer to the complaint.
On June 1, 1976, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment based on the Respondent 's failure to file
an answer as required by Sections 102.20 and 102.21
of the Board's Rules and Regulations , Series 8, as
amended.' Subsequently , on June 24 , 1976, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel ' s Motion for Summary Judgment
should not be granted . Respondent thereafter failed
to file a response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
1 The motion was inadvertently filed with the Chief Administrative Law
Judge rather than with the Board as required by Sec 102 24 of the Board's
Rules
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
denied or explained in an answer filed, unless
the respondent shall state in the answer that he
is without knowledge, shall be deemed to be ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint and notice of hearing served on the
Respondent and its agents by registered mail specifi-
cally states that unless an answer to the complaint is
filed by the Respondent within 10 days of service
thereof "all of the allegations in the complaint shall
be deemed to be admitted by it to be true and may
be so found by the Board." According to the uncon-
troverted allegations of the Motion for Summary
Judgment and attached affidavits of service, copies
of the complaint and notice of hearing were served,
by registered mail, on April 26, 1976, on William Sul-
livan, Respondent's agent and general manager, and
on April 29, 1976, on James G. Sullivan, Re-
spondent's statutory agent.2 Thereafter, on May 4,
1976, counsel for the General Counsel personally
served William Sullivan with a copy of the charge
and complaint herein at Respondent's place of busi-
ness at 2801 South Dixie, Dayton, Ohio. As noted
above, Respondent did not file an answer to the
complaint, nor did it file a response to the Notice To
Show Cause. No good cause to the contrary having
been shown, in accordance with the rules set forth
above, the allegations of the complaint are deemed to
be admitted and are found to be true. We shall, ac-
cordingly, grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
2 The letter to the statutory agent was returned marked "Moved. Left No
Address "
225 NLRB No. 175
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is engaged
in the operation of a restaurant and night club with
its principal office and place of business located in
Dayton, Ohio. During the past calendar year, a rep-
resentative period, Respondent received gross reve-
nues in excess of $500,000 from the operation of its
restaurant and night club business. During that same
period of time, Respondent purchased goods and
materials valued in excess of $50,000 from Ohio sup-
pliers who, in turn, purchased such goods from out-
side the State of Ohio and caused such goods to be
shipped directly to them from locations outside the
State of Ohio.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 assertjuris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
Bartenders, Motel, Hotel and Restaurant Workers,
Local Union No. 222, Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violation
On or about October 14, 1975, Respondent told an
employee that she or he was being fired because she
or he had associated with a business agent of the
Union.
Accordingly, we find that, by the aforesaid con-
duct, Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights
guaranteed under Section 7 of the Act and that, by
such conduct, Respondent thereby engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
B. The 8(a)(3) Violation
On or about October 14, 1975, the Respondent dis-
criminatorily discharged employee Mariann Allen
because of her sympathies for, membership in, and
activities on behalf of the Union.
Accordingly, we find that, by the aforesaid con-
duct , Respondent discriminated in regard to the
terms and conditions of employment of its employ-
ees, thereby discouraging membership in a labor or-
ganization and that , by such conduct , Respondent
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and ( 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 opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act, we shall
order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the pol-
icies of the Act.
Having also found that Respondent discriminato-
rily discharged employee Mariann Allen, we shall or-
der Respondent to offer her immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority and other rights and privi-
leges, and to make her whole for any loss of earnings
she may have suffered by payment to her of a sum of
money equal to the amount she normally would have
earned as wages from the date of her discharge to the
date of the Respondent's offer of reinstatement, less
net earnings, in accordance with the formula set
forth in F. W Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
As the unfair labor practices committed by Re-
spondent were of a character which go to the very
heart of the Act, we shall order Respondent to cease
and desist from infringing in any other manner upon
the rights of employees guaranteed by Section 7 of
the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Colony Club of Dayton, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
COLONY CLUB OF DAYTON, INC 1213
2. Bartenders, Motel, Hotel and Restaurant
Workers, Local Union No. 222, Hotel and Restau-
rant Employees and Bartenders International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the conduct set forth in section III, A and B,
Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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,
Colony Club of Dayton, Inc., Dayton, Ohio, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that they were being fired
because they had associated with a business agent for
the Bartenders, Motel, Hotel and Restaurant Work-
ers, Local Union No. 222, Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-
CIO, or any other labor organization.
(b) Discouraging membership in Bartenders, Mo-
tel, Hotel and Restaurant Workers, Local Union No.
222, Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO, or any other la-
bor organization, by its employees by discriminato-
rily discharging or by otherwise discriminating in
regard to hire and tenure of employment of any of its
employees because they joined or assisted Bartend-
ers, Motel, Hotel and Restaurant Workers, Local
Union No. 222, Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, or
any other labor organization, or engaged in other
concerted activity for the purpose of collective bar-
gaining and mutual aid and protection.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise 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) Offer Mariann Allen immediate and full rein-
statement to her former job or, if that job no longer
exists , to a substantially equivalent position, without
prejudice to her seniority and other rights and privi-
leges, and make her whole for any loss of pay she
may have suffered by reason of the discrimination
against her by payment to her of a sum of money
equal to the amount of money she normally would
have earned from the date of her discharge to the
date of the Respondent's offer of reinstatement, in
the manner set forth in the section herein entitled
"The Remedy."
(b) Post at its Dayton, Ohio, restaurant and night
club copies of the attached notice marked "Appen-
dix." 3 Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly
signed by Respondent's representative, shall be post-
ed 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
3In the event that 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 National 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell our employees that they are
being fired because they have associated with a
business agent for the Bartenders, Motel, Hotel
and Restaurant Workers, Local Union No. 222,
Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO, or any
other labor organization.
WE WILL NOT discourage membership in the
above-described Union or any other labor orga-
nization by our employees by discriminatorily
discharging or by otherwise discriminating in re-
gard to hire and tenure of employment of any of
our employees because they joined or assisted
the above Union, or any other labor organiza-
tion, or engaged in other concerted activity for
the purpose of collective bargaining and mutual
aid and protection.
WE WILL NOT in any other manner interfere
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Section
7 of the Act.
WE WILL offer Mariann Allen immediate and
full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to her seniority and
other rights and privileges, and make her whole
for any loss of pay she may have suffered by
reason of the discrimination against her by pay-
ment to her of a sum of money equal to the
amount of money she normally would have
earned from the date of her discharge to the date
of an offer of reinstatement.
COLONY CLUB OF DAYTON, INC.